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21 Mar 2017 
Three years after recognizing a new cause of action for racial

redistricting in Shaw v. Reno,(1) the Supreme Court's voting rights

jurisprudence still teeters on the brink of legal incoherence and

political chaos. Concerned about the new extremes to which

self-interested redistricting has been taken in the 1990s--particularly,

but not exclusively, for racial purposes--the Court has been struggling

to articulate legal principles that might fix acceptable boundaries on

the power of politicians to define their constituencies.(2) But last

Term's unsurprising decisions striking down districts in North

Carolina and Texas,(3) like the previous Term's decision

invalidating a Georgia congressional district,(4) suggest that these

principles remain disturbingly elusive.(5) To be sure, some speculations

have been publicly confirmed, most notably that the five-member majority

crafting these new constitutional constraints is itself profoundly

fragmented.(6) Yet the precise extent to which election districts can be

designed to take race or ethnicity into account remains shrouded in a

doctrinal framework that provides scant practical guidance in the most

charged setting of all for identity and partisan politics.

The relationship of race to the construction of political

institutions is a prominent site in which themes of "Group Conflict

and the Constitution," the topic of this Symposium, are currently

being played out. In the redistricting arena, the Court now appears to

have settled on a doctrinal formula through which it will mediate this

particular form of group conflict. In each of the last two Term's

cases, the Court has consistently rehearsed this doctrinal principle:

Race cannot be "the predominant factor" in the drawing of

election district lines.(7) This approach to racial group conflict in

the political realm organizes constitutional inquiry around the

motivations of those who control the redistricting process.

This brief Essay seeks to make one narrowly targeted doctrinal

point: Whatever the merits of motive-based approaches to mediating group

conflicts in other constitutional contexts, in the redistricting arena

that approach will not be capable of sustaining constitutional doctrine

in a coherent, administrable, or useful form. This is not due to general

theoretical concerns about motive-based doctrines, but to pragmatic

reasons peculiar to the redistricting context. If the Court's

current project of imposing constitutional restraints on race and

redistricting is to be given principled legal content, it will have to

be through another approach. Toward the close of this Essay, I will

suggest the most likely alternative.

With respect to general problems of group conflict and the

Constitution, this Essay's discrete concerns might nonetheless

suggest a few broader implications. At the most general level, I will

argue that the Supreme Court's struggles stem from misguided

efforts to assimilate race-conscious districting to the constitutional

framework for other race-conscious government policies. The now reigning

approach to policing racial redistricting, the motive-based

"predominant factor" test, offers the allure of consistency

with other areas of constitutional law. By importing Washington v.

Davis(8) and City of Mobile v. Bolden(9) into redistricting, the Court

has cast the Shaw doctrine as continuous with established Fourteenth and

Fifteenth Amendment principles. But this portrait of continuity is an

illusion. At least in the area of race, constitutional problems of group

conflict cannot be approached effectively in universal terms. Contexts

in which issues of race-conscious policy arise turn out to differ in

pragmatic, but central, ways. Whatever the merits of more rigidly

"consistent" approaches in other institutional

arenas--approaches that argue for colorblindness or race-consciousness

in all-or-nothing terms--within the legal system, contextual variations

must be attended to if courts are to develop coherent, administrable

legal doctrines.

Thus, whether or not the intent standard of Davis is appropriate

for certain contexts, such as public employment, the effort to borrow

this standard for redistricting is fundamentally flawed. I will stress

three reasons that this is so, though others could be marshalled. First,

an intent standard is not properly linked at the conceptual level to the

nature of the constitutional harm that the Court's

racial-redistricting cases recognize. The injuries Shaw makes actionable

are expressive harms, as will be described later; such harms focus on

the social meaning of, and social perceptions about, government action,

rather than on individuated and more material harms to discrete

individuals. Once the role of these expressive harms in Shaw is

appreciated, the predominant motive test can be seen not to be a

coherent approach to implementing the decision's underlying theory.

Second, an intent standard emerges out of more conventional

individual-rights adjudication contexts. But Shaw is not best understood

as operating within an individual-rights model of the relevant harm.

Third, in the redistricting arena, the Davis approach will be

intractable at the practical level. Sensible doctrine in this area must

recognize that carving states into election districts differs in

essential ways from choosing one of two applicants for a particular job,

or awarding a public construction contract to one of two competing

firms, or granting a broadcasting license to one of two bidders. In

particular, race and partisan politics are too compounded in

redistricting to be separable through motive-based "predominant

factor" tests. Whatever precision such tests might have elsewhere,

in the redistricting context they can only dissolve into ritualistic,

vaporous incantations. Inevitably, this approach will lead to

disingenuous judicial decisions; courts simply are not likely to be able

or willing to apply such a standard faithfully. Indeed, this evasion of

artificial doctrinal formulas is already evident in the Supreme Court

itself: The Court has begun to decide cases in ways that cannot be

reconciled with a primary emphasis on ferreting out legislative


Doctrinal stumbling and confusion about race-conscious districting

poisons politics and culture in particularly pathological ways. Under

the best of circumstances, the drawing of election districts by

politicians is nasty, brutish, and anything but short. Adding race and

ethnicity makes the mix even more combustible. Unless the Court quickly

brings more principled legal ordering to the framework of racial

redistricting, political institutions will become the site for the most

divisive racial and ethnic confrontations seen in many years. Already in

the aftermath of the Court's recent decisions, several states have

become too politically paralyzed to redistrict at all; instead, they

have defaulted the task to federal courts.(11)

This Essay is directed primarily to courts struggling to implement

the Shaw doctrine. The approach here also differs from what might be

called "the ideological turn" that legal scholarship has taken

in recent years.(12) Increasingly, legal scholarship has merged into

fields like political theory and cultural critique as it has sought to

tease out the general systems of beliefs, assumptions, and structures of

values embedded within legal decisions. For some purposes, this work has

been immensely valuable; yet it necessarily downplays characteristic

qualities of legal decisionmaking and more internal styles of legal

analysis. Rather than focusing on the fine-grained distinctions between

cases and contexts that more conventional legal analysis stresses, for

example, ideological critique tends to see cases as raising fundamental

choices between competing, broad ideologies.(13) Rather than seeing

legal issues as arising amid specific institutional constraints and

within particular complexes of fact, ideological analyses tend to be

framed in terms of clashes between competing frameworks of values, often

conceived at high levels of abstraction. Because my aim is limited here

to the judicial implementation of Shaw, this Essay is more in the nature

of internal doctrinal critique. Thus I do not engage in the

"fundamental" debate that has preoccupied much academic

commentary on the decision: whether race-conscious districting, in the

extreme geographic forms Shaw condemns, ought to be constitutional. Much

of the response to Shaw has predictably, but unproductively, urged that

it be overruled.(14) Yet with five cases now decided in the last four

Terms, even dissenting Justices have recognized that "the Court

seems settled in its conclusion that racial gerrymandering claims such

as these may be pursued."(15) I take the principle of Shaw to be

settled, at least for now, and for implementation purposes seek to

understand the doctrine on its own terms.

Part I begins by explaining Shaw and then challenges prevalent

mythologies concerning racial redistricting and the Voting Rights Act

(VRA). I argue, for example, that certain familiar criticisms of Shaw

misunderstand both the history of the VRA and the present context of

redistricting. To address Shaw effectively requires understanding it as

a specific response to distinct developments in the voting arena.

Ironically, however, the specific means the Court invokes fail to

recognize what is distinct about the logic of voting rights. Thus Part

II seeks to demonstrate that the current "predominant motive"

test will necessarily fail as a means of implementing the values Shaw is

best understood to reflect. Finally, the Essay ends with suggestions on

how the realities of the entanglement between race and politics in

redistricting can be better recognized through an alternative approach

that provides more principled guidance in this highly charged arena.


Shaw and subsequent decisions hold that race-conscious election

districting will be subject to strict scrutiny and held unconstitutional

in certain specific circumstances. Questions abound at each stage of

this inquiry: (1) what precise triggering facts bring strict scrutiny

into play; (2) what state justifications are sufficiently compelling

once strict scrutiny is applied; and (3) what means are the most

narrowly tailored forms of districting once strict scrutiny is applied.

Although the same issues can arise under more than one of these

inquiries, this Essay focuses on the first question as the point of

greatest complexity in the current formulation of Shawl To begin

unpacking that aspect of Shaw, it is perhaps easiest to start with what

the decision does not hold regarding when strict scrutiny will be


Despite exaggerated claims from both critics and supporters,(16)

the Shaw doctrine is neither a broad attack on section 2 of the VRA nor

an assault on all intentional race-conscious districting. To be sure,

some Justices would subject all such districting to strict scrutiny;

some have gone further and intimated a willingness to hold the

"results" test of section 2 unconstitutional.(17) As an

institution, however, the Court has explicitly stated that Shaw reflects

a judicial effort to distinguish "appropriate and reasonably

necessary uses of race from its unjustified and excessive

uses."(18) The excessive use of race, not racial classification per

se, generates Shaw harms. That is the principle that critics and

supporters of Shaw should be contesting, not the role of race per se in

districting. It is also the principle to which courts implementing Shaw

must give content.

If race-consciousness per se is not harmful except when taken to

certain extremes, one may view Shaw as a judicial effort to draw the

highly contestable line that plagues all civil rights policies, the line

between (to use loaded terms) "nondiscrimination" and

"affirmative action." As difficult as this line is to define

in other contexts, it is even more difficult in the area of voting

rights. In contexts like employment policy, it is at least arguable in

theory that nondiscrimination can be achieved through the adoption of

employment practices that do not themselves require race-consciousness.

The VRA addresses the way public electoral structures respond to private

voting patterns; public law must first look to whether those patterns

reflect racially polarized voting, and then, because private voting

behavior cannot itself be directly regulated, reactive public

institutions can only respond by themselves adopting race-conscious

programs designed to countervail private race-conscious voting. That is

what the post-1982 VRA does.

As the Court appears to see it, race-consciousness in

redistricting is permissible to ensure evenhandedness; equal rights

means that minority voters have similar opportunities as majority voters

to elect "representatives of their choice." Section 2 of the

VRA bans vote dilution, and thus requires that districting be racially

evenhanded; but as the Court construes it, this process of

race-conscious districting is permissible when necessary to ensure equal

rights. When race-consciousness goes beyond this point, the shadow of

strict scrutiny falls. All this sounds tautological, of course. The

Court gives content to these principles by implicitly comparing what is

done when majority and minority districts are being created. When

majority-minority districts comply with traditional districting

principles, and are drawn to redress racially polarized voting, the

Court treats them as constitutionally appropriate because necessary to

secure evenhanded treatment. When race-conscious districting goes

further, by abandoning the principles typically used to draw other

districts, the Court treats race as having been singled out for

exceptionally preferential treatment. The Shaw Court can be understood,

then, as holding that when this point has been crossed, the VRA has been

illicitly transformed from a regime of "nondiscrimination" to

one of "affirmative action." Moreover, redistricting signals

this shift more visibly and publicly than other policies: The maps speak

for themselves (the frequency with which editorial page writers and

judges reprint them attests to this belief).(19)

Seen in this light, Shaw's concern with the "excessive

and unjustified" use of race can be seen as cousin to last

Term's decision in Romer v. Evans,(20) as well as other recent, but

less controversial, voting-rights cases.(21) The fact that

Colorado's Amendment 2 went beyond depriving homosexuals of

"special rights," and so broadly denied legal protections

"taken for granted by most people either because they already have

them or do not need them," led the Court to conclude both that the

Amendment failed the rational basis test and that it rested on an

impermissible animus.(22) Although Romer reaches a result liberals

applaud, and Shaw one that liberals deride, in both the Court's

legal conclusions implicitly require it along the way to give content to

the elusive line between "equal rights" and "special

preferences." Indeed, that distinction is now emerging as one of

the philosophical touchstones of the current Court's constitutional


To provide the factual matrix within which this distinction must

be assessed in the redistricting context, this Part seeks to undermine

several common mythologies prevalent in academic and popular critiques

of Shawl In previous work, I have addressed voting rights mythologies

typically associated with political conservatives.(23) Here, I note four

mythologies typically associated with critics of Shawl

A. Myth #1: Minority-Controlled Districts in the 1990s Are No More

Bizarre than Districts Traditionally Have Been

Some charge that the Supreme Court has become worried about

"bizarre" districts only now that such districts have emerged

to benefit racial and ethnic minorities.(24) In a literal sense, this is

true: Shaw does not condemn "extremely bizarre" districts

across the board, only those in which race can be viewed as having

played too dominant a role. Should politicians craft highly contorted

districts to protect incumbents, the Constitution would not be

implicated;(25) should politicians do so for partisan reasons, the

Constitution is only implicated in theory, not in practice.(26) Some

critics go so far as to view this as a "racial double

standard": Bizarre minority-majority districts are subject to

constitutional challenge, while bizarre white-majority districts are


In the redistricting context, at least, this rhetorically forceful

charge ignores dramatic recent developments evidenced in the 1990s round

of redistricting. For several reasons, the creation of bizarrely

configured districts exploded in the 1990s. Much of this development is

directly attributable to race-conscious districting. Even where it is

not, there is reason to believe that such districting indirectly

influenced the rise of bizarre districting through its effects on the

culture, as opposed to the formal law, of redistricting. To the extent

minority-controlled districts are far more extreme in shape than other

districts, or to the extent that the VRA and race-conscious districting

is a significant cause of whatever new extremes might be found in

white-majority districts, Shaw needs to be assessed as a response to

genuinely novel developments. The evidence does indeed establish that

this is the case.

One means of documenting these changes is to quantify the rise of

"highly bizarre" congressional districts in the 1990s. This

can be done through numerical techniques that assess district

shapes.(28) For purposes of Shaw, one relevant measure focuses on the

perimeter of districts, assaying the extent to which borders meander to

include selected voters. A second relevant measure focuses on the

dispersion of districts, testing how efficiently a district encompasses

its territory. Both measures start from the baseline of a circle as the

ideal district shape. At this stage, we need not ask the normative

question of what values reasonably compact districts might serve, nor

what the ideal baseline for assessing compactness ought to be. The aim

initially is to see whether we can identify significant recent changes

in districting practices before turning to the possible legal


Using these measures, I have compared the compactness of

congressional districts in the 1980s and 1990s on a state-by-state basis

as well as nationwide in the aggregate. The results are reproduced in

Appendix I. Nationwide, substantially more congressional districts in

the 1990s than in the 1980s can be considered "highly

bizarre."(29) With respect to district perimeters, taking an

arbitrarily selected threshold, there were only sixteen districts below

this level in the 1980s, while in the 1990s there were fifty

districts--more than three times as many. Similarly, using an arbitrary

threshold for the dispersion measure, there were twenty-five districts

in the 1980s spread out more diffusely than this level, while there were

forty in the 1990s. In other words, congressional districts became

dramatically more bizarre in the 1990s than they were in the 1980s.

Moreover, these aggregate nationwide data obscure even more remarkable

changes in states that created new minority congressional districts in

the 1990s. Using the perimeter measure, in North Carolina, the average

compactness of congressional districts fell a dramatic 70% in the 1990s;

in Louisiana, it fell 62%; in Texas, 50%; in Virginia, 43%; in Georgia,

35%. In four states, Florida, North Carolina, South Carolina, and Texas,

dispersion scores dropped at least 20%. In states with new minority

districts, therefore, the average compactness of all districts


This transformation in the pattern of districting can be

documented in another way. We can compare the frequency with which

political subdivisions, such as counties, cities, and towns, were

divided across multiple congressional districts in the 1990s compared to

the 1980s. From judicial findings and documents discovered in

litigation, Professor Timothy O'Rourke has collected such

information; the results parallel those in the compactness studies.(30)

In North Carolina, congressional lines had largely adhered to county

boundaries in preceding decades. In the 1980s plan, only four of the

state's hundred counties had been split. In the state's

original plan for the 1990s, subsequently invalidated in the Shaw

litigation, forty-four counties were split; indeed, seven counties were

fragmented into three congressional districts. Not only were counties

split, but "`a large number of divided precincts'" also

emerged in the 1990s.(31) In Texas, the 1990s redistricting plan, since

struck down, split thirty-five counties and more than 160 cities, while

the 1980s plan had fractured only ten counties. In Georgia, the 1980s

plan had divided three counties, while the 1990s plan, also invalidated,

split twenty-six counties. Yet another since-invalidated 1990s

redistricting plan, Louisiana's, fragmented twenty-eight of the

state's sixty-four parishes; that state's 1980s plan had

divided only seven parishes. Recent judicial findings from Virginia

reveal that that state's 1980s districting plan had split three

counties and two cities between districts; the 1990s plan divided eight

cities, all split by the one majority-black district (the Third

Congressional District) the state created in the 1990s.(32) Of the

seventeen localities comprising this district, eleven were split between

two congressional districts, with the borders closely tied to racial


To be sure, partisan aims have driven gerrymandering as long as

districted elections have existed, and on occasion, have generated

similar tactics.(34) And thus far, the available data enable relatively

easy systematic comparisons only of congressional districts between the

1980s and 1990s.(35) Nonetheless, it is clear that the 1990s have

witnessed a precipitous and systematic decline in the regularity of

congressional districts.

To what extent are the VRA and race-conscious districting

responsible for this proliferation of extreme district shapes? Appendix

II lists the twenty-eight most bizarrely shaped congressional districts

in the immediate aftermath of the 1990s redistricting; certain of these

districts were later judicially invalidated under Shawl Of these

twenty-eight districts, thirteen were minority-dominated districts. Of

the remaining fifteen, between five and eight shared substantial borders

with one of these contorted minority districts and were therefore

necessarily contorted as well. Of the remaining seven to ten districts,

two reflect the contorted geography of the unusual terrain they

encompass: District 36 in California is noncompact because it includes

two islands, and District 10 in Massachusetts includes Cape Cod and

nearby islands. Thus, as few as five and as many as eight of the

twenty-eight most bizarre districts were white districts neither mapping

onto contorted natural geography nor adjoining oddly shaped minority

districts.(36) Put another way, the direct effect of race-conscious

districting on the general pattern of declining compactness appears

quite substantial. But there is a more subtle and indirect way that the

VRA and racial redistricting in recent years might have contributed even

to those few extremely bizarre white-majority districts not adjoining

minority ones.

Although it would be difficult to prove conclusively, I suspect

that race-conscious districting has intersected in the 1990s with other

developments that together have brought about a general decline in tacit

constraints that previously constrained interest group politics,

including pursuit of partisan self-interest, during the intensely

political process of districting. Three factors changed during the 1980s

that account for this transformation: technology improved;

constitutional doctrine shifted in the reapportionment area; and

statutory obligations to avoid minority-vote dilution under the VRA were

substantially enhanced. Taken together, these factors have facilitated

gerrymandering on a new scale. In assessing Shaw, it is tempting to try

to isolate the distinct and direct contribution to the proliferation of

bizarre districts of recent race-conscious districting under the VRA.

After all, Shaw is not a comprehensive antigerrymandering doctrine; it

is directly targeted at racial gerrymandering alone. Thus if Shaw is to

be justified as a response to the general new context of redistricting,

it seems appropriate to ask how much the particular factor Shaw

addresses--race-conscious districting--has contributed to this general

phenomenon. Yet the effort to isolate the independent contribution of

each of the three new factors might well be mistaken. In practice, these

contributing factors are probably not independent, but synergistic. Each

has enhanced the role of the other in fostering more aggressive

gerrymandering in general.

For example, the statewide data in Appendix I are striking in that

every state in which perimeter or dispersion measures plunged

dramatically (including those involving far more pervasive splitting of

counties) had created at least one new minority district in the 1990s

under the pressure of the post-1982 VRA. Redistricting is ugly and nasty

precisely because, for political parties and incumbents, self-interest

and even survival is so strongly at stake. Given the incentives, the

question is why should any constraints check the process at all? My

speculation is that, like many public processes, redistricting was

structured not only by formal legal requirements regarding what is

permitted and prohibited, but also by a set of taken-for-granted

background cultural norms.(37) Collective understandings accepted on all

sides, some explicit, some tacit, constrained to some extent the

crassest forms of the pursuit of political self-interest. In some

states, such as North Carolina, there were strong presumptions against

dividing counties. In others, certain districts were so irregularly

shaped that were they proposed, they would immediately have been laughed

off the table.

Apart from its direct effects, the VRA in the 1980s might have

influenced this general culture of redistricting. Once it became

permissible to violate various traditional tacit norms such as

compactness to comply with the VRA, these tacit understandings might

have eroded more generally. Texas, for example, was aggressively and

successfully gerrymandered for partisan purposes in the 1990s, including

several extremely bizarre white districts whose contorted shapes were

not necessary to accommodate minority districts.(38) The VRA was not the

only source of attack on the tacit norms of the prior redistricting

culture. The sharp drop in general compactness in those states that

created new minority districts might reflect, in part, the indirect

effect of the VRA on these important, previously assumed

constraints.(39) Finally, as discussed later,(40) a new constitutional

doctrine created in the 1980s and technological advances also encouraged

and facilitated the recent rise of bizarre districts.

The principal point is that redistricting in the 1990s cannot be

portrayed as business as usual. Untangling the precise causal

contribution of the factors driving the radical decline in district

compactness is not easy, particularly if some of these factors are

interdependent. But the creation of safe minority districts certainly

played a significant direct role in these developments, and perhaps a

more subtle, indirect one as well. Shaw thus needs to be appraised as a

response to specific developments in redistricting in the 1990s. The

failure to do so renders critique unresponsive to concerns that might

motivate or justify Shaw.(41)

Thus it is true in constitutional theory (at least for the moment)

that bizarre districts can be drawn without constitutional concern for

groups not identifiable in racial terms--"farmers, or Republicans

in a Democratic region of the state, or gays, for that matter."(42)

In actual practice, such districts do not exist, certainly not in any

systematic pattern. While Shaw does formally single out race-conscious

districting for distinct constitutional treatment, then, the doctrine

more closely mirrors the actual political practices of current

districting than many critics acknowledge. That does not in itself, of

course, justify Shaw, but it should frame the terms in which Shaw is


B. Myth #2. The Court Is Effectively Overturning Carefully Considered

Congressional Policy Judgments Enacted in the VRA

Shaw is also sometimes criticized as inappropriate judicial

resistance to policy decisions previously, and more appropriately,

adopted in Congress.(43) On this view, the Department of Justice and

state redistricters are engaging in race-conscious districting that

Congress has required or authorized; Shaw is therefore tantamount to

judicial undermining of the VRA. To the extent that civil rights groups

won a hard-fought political struggle in the 1982 Amendments, the courts

should not interfere with, but rather ought defer to, these legislative

policy choices, particularly in such a charged political arena. In

effect, this critique portrays Shaw as directly colliding with the VRA

that Congress adopted.

This view, however, rests on a highly stylized and unrealistic

account of the 1982 Amendments. Courts and commentators often portray

statutes and legislative intent as if they resolve more than they do.

Once the veils of ritualized pieties about congressional intent are

pierced, it simply becomes implausible to claim that Congress enacted

and the President signed legislation that contemplated, let alone

required, the kind of race-conscious districting at issue in the Shaw

cases. I do not mean that Congress did not contemplate that the 1982

Amendments would require race-conscious districting; the fairest

inference from the legislative process is that Congress did understand

that some forms of race-conscious districting would be required. But it

is the kind of districting at issue in Shaw, the use of extremely

contorted districts that split counties, towns, and cities so freely,

that cannot be claimed to emanate from a deliberative national policy

choice. The method of interpreting statutes to imaginatively reconstruct

what the enacting legislature would have done with a question it did not

confront often cannot yield intelligible answers.(44) But if any answer

is plausible here, it is surely that Congress would have rejected any

assertion that the 1982 Amendments required the kind of extremely

bizarre race-conscious districting now at issue. Other justifications

for these districts might still be offered, but critics of Shaw cannot

credibly invoke a fictive legislative choice that, realistically, never

was made. A brief review of the legislative context in 1982 will reveal


First, the principal focal points of vote dilution litigation in

1982 were at-large and multimember election systems.(45) In this

context, a bloc-voting and hostile majority could maintain complete

domination of electoral politics through its ability to outvote a

vulnerable minority for each and every seat. Vote dilution was

tantamount to utter exclusion from political office holding and, most

likely, political influence.(46) The primary objective of litigation was

to force the restructuring of these systems into single-member districts

in which minorities would be able to control some number of seats. But

the emphasis was on how liability would be established when challenges

were brought to at-large and multimember systems. The major cases

Congress drew upon in 1982 all involved such challenges. Given this

priority, little attention was directed toward the question of precisely

how single-member districts would be designed once the remedial stage

was reached. Moreover, vote dilution challenges to the way districts

were arrayed within a single-member districting plan were still largely

problems for the coming years. Indeed, only in 1993 did the Supreme

Court finally hold that the doctrinal framework developed previously

would apply to dilution challenges to redistricting plans.(47) Precisely

how the concept of vote dilution would apply in this distinct context

was complex, uncertain, and hardly central, let alone on the agenda,

during the 1982 congressional debates. Whereas dilution in at-large and

multimember elections sought to replace one form of election with

another, challenges to single-member districting plans presented a vast

array of potential alternatives for laying out the pattern of districts.

And while dilution in at-large and multimember systems might be

tantamount to total exclusion, once elections took place through

individual districts, the questions of dilution and effective minority

influence became more subtle.(48)

The 1982 Amendments incorporated a "results" test into

section 2 of the VRA, which bars any voting practice that "results

in a denial or abridgement of the right of any citizen of the United

States to vote," even without proof of discriminatory purpose.(49)

It is essentially this provision that the Department of Justice and

state redistricters, as well as critics of Shaw, invoke to claim that

the VRA required or supported the extremely bizarre race-conscious

districts at issue.(50) When Congress amended section 2 this way, we can

say for certain that Congress intended to reject the Supreme

Court's holding in Mobile v. golden. There, in a challenge to

at-large city council elections, the Court held that the Fifteenth

Amendment as well as the then-existing version of section 2 required

proof of discriminatory purpose. The decision provoked an immediate

outcry from voting rights lawyers and civil rights organizations; they

argued that the decision reversed Court precedents of the previous

decade and would bring vote dilution litigation to a halt.

In response, Congress did agree to make vote dilution litigation

easier and to reject Mobile. But what Congress understood itself to be

erecting in the place of Mobile--what it understood the

"results" test to mean--is far less certain. One possibility,

probably the best description of a plausible collective understanding to

attribute, is that Congress conceived itself to be restoring the

pre-Mobile judicial status quo. The Court's prior decisions,

primarily in Whitcomb v. Chavis(51) and White v. Regester,(52) defined

that prior legal status quo; Congress repeatedly described the

amendments as "codifying the leading pre-Bolden vote dilution

case[s]."(53) The problem, though, was that these earlier cases

themselves had not worked out a coherent conception of vote dilution.

Regester had employed two quite different theories to strike down

multimember districts in two different Texas counties,(54) while

Whitcomb had rejected a vote dilution challenge to a multimember Indiana

district in circumstances not easy to distinguish from those in Texas.

Given the political attractions of ambiguity(55) and shifting of

responsibility,(56) the very uncertainty of these cases, which

recognized that lines had to be drawn between permissible and

impermissible vote dilution claims but which left those lines murky,

perhaps made congressional incorporation-by-reference of the cases all

the more politically attractive.

A second plausible possibility is that Congress simply had no

clear conception in mind of what vote dilution or the

"results" test would mean. That is, Congress might well have

had neither a clear conceptual sense of vote dilution, nor a

well-developed practical understanding of what the results test would

mean in application. Remarkably, in light of the dramatic

transformations that section 2 would soon effect, there was little

substantive discussion of this aspect of the 1982 Amendments in the

House; debate there centered on other proposed amendments considered

more important and controversial.(57) Only in the Senate did sustained

and focused debate on the meaning of section 2 begin to emerge. Those

debates generate little confidence that supporters of the section 2

Amendments had a coherent conception of vote dilution in mind, certainly

not at the margins of vote dilution at which the Shaw problem arises.

Whether Congress had a consensus on the concept of vote dilution with

respect to single-member districts even in core or paradigmatic contexts

is not critical for present purposes. Even if it had, Congress surely

did not endorse and had no policy in mind at all concerning the

subsidiary questions at issue in Shaw: whether race-conscious districts

that departed in dramatic and highly visible ways from other districts,

such as being "extremely bizarre" in shape, were appropriate

or required to avoid illegal vote dilution.

On the general concept of vote dilution, all purported to agree

that section 2 would not require proportional representation along

racial lines. Yet when asked how a "results" test could mean

anything else, proponents referred to a vague "totality of the

circumstances" inquiry that prior cases were correctly said to have

adopted. When the Senate Report attempted to specify these

circumstances, it listed seven typical factors, suggested at least two

other additional factors, noted that in some cases yet "other

factors," left unspecified, would be relevant, and then observed

that "there is no requirement that any particular number of factors

be proved, or that a majority of them point one way or the

other."(58) A statutory standard that relies on the "totality

of the circumstances" and a laundry list of potentially relevant

factors often signals the absence of clear consensus on the core concept

involved. Moreover, in practice, courts applying such a standard will

almost inevitably gravitate toward one of two alternatives: distilling

this range of factors into a few deemed most essential to enable more

rule-like implementation of the standard, or invoking different factors

in different cases in a necessarily more ad hoc approach. The Supreme

Court, as discussed in a moment, almost immediately opted for the


The critical theme here is that the starting point of the section

2 amendments, the "results" test, was from its inception

unusually cloudy. This test was even less clear for challenges to

single-member districting plans than for at-large and multimember

elections. The legislative history that would confirm this cannot be

recounted in detail here, but to get a sense of its tenor, consider the

following typical colloquy in the Senate Judiciary Subcommittee hearing,

where most of the section 2 discussion took place. The exchange is

between a Republican supporter of amended section 2, Senator Charles

Mathias of Maryland, and a Senate Judiciary Subcommittee chair and a

skeptic, Senator Orrin Hatch of Utah:

SENATOR MATHIAS: The purpose of this bill is to provide for fair

and just access to the electoral process.

SENATOR HATCH: Is [it] the most fair and just means to achieve

access--if 55 percent of Baltimore is black then 55 percent ought to be

black majority districts?

SENATOR MATHIAS: A fair and just operation of the electoral

process is to give all citizens equal access to vote, run, or otherwise

participate in the process.

SENATOR HATCH: What does "equal access" mean, Senator


SENATOR MATHIAS: You are well aware of what it means.

SENATOR HATCH: I want to know what you think it means, because I

know what it means under the effects test in section 5. I think it

means, as does the Attorney General of the United States, proportional


SENATOR MATHIAS: You look at the totality of circumstances; that

is what we have been doing.

SENATOR HATCH: That is what we do under the intents standard.

. . .

. . . I am quite confused as to the relevance of the circumstances

that you are considering in their totality.

. . .

I do not understand what the question is that the court asks

itself in evaluating the totality of circumstances under the results

test. What precisely does the court ask itself after it has looked at

the totality of the circumstances? What is the standard for evaluation

under the results test?

SENATOR MATHIAS: Look at the results.

SENATOR HATCH: That is all? You are saying that if there was

absolutely no intent to discriminate, as the Court found in the Mobile

case, yet the results were the election of disproportionately few

minority candidates, that a case would be established?(59)

This brief excursus into the congressional history of section 2

returns us to the Court's effort to maintain what it seems to view

as the distinction between "nondiscrimination" and

"affirmative action" in VRA enforcement. One way to reflect on

the Court's concern is to set it in the broader context of the

history of civil rights policymaking. As policymaking in this arena has

matured, this distinction has paradoxically become increasingly

important yet increasingly blurred. The distinction appears important to

public support for civil rights; support for policies that can be framed

as "nondiscrimination" ones has always been higher than for

those characterized as affirmative action.(60) Scholars have recently

argued that the lesson of thirty years of civil rights enforcement is

that institutional dynamics make it difficult for administering agencies

to maintain this distinction. Thus, John Skrentny has recently asserted

that the pressures of "administrative pragmatism"(61) almost

immediately channelled the enforcement of Title VII toward more

extensive race-consciousness and an emphasis on bottom-line numbers than

its original proponents would have endorsed.(62) In his account,

internal administrative forces pressed policy in this direction long

before political pressures or ideological justifications for affirmative

action arose publicly.(63)

Other scholars have argued that the distinction between

nondiscrimination and affirmative action is itself not conceptually

coherent,(64) or that with the institutionalization of affirmative

action, regulatory capture has become as prevalent a phenomenon as

traditional economic regulation.(65) On this view, enforcement entities,

public and private, became dominated by the programs' strongest

advocates; beneficiary groups are the most effectively mobilized to

press their interests; and iron triangles form between administrators,

those who stand to gain most, and political supporters. Conceptually,

politically, and administratively, the pressures on the boundary between

nondiscrimination and affirmative action are powerful. Yet at the same

time, rising skepticism that this line would or could be maintained

became one factor in a backlash against support for the equal rights

model itself.(66)

In the voting rights context, one interpretation of

nondiscrimination would be that minorities should be descriptively

represented in politics in numbers roughly proportional to their

population; this is an outcome-oriented reading that focuses on

bottom-line numbers.(67) An alternative reading is more

process-oriented: Minorities are legally entitled to an evenhanded

districting process, but not to districts drawn according to special

principles not generally applicable. It is important to recognize that

this tension has arisen only recently in the VRA field, as the force of

litigation shifted from dismantling at-large and multimember election

systems to challenging the distribution of single-member districts

within a districting plan.(68)

Shaw reflects the Court's adoption of one interpretation of

nondiscrimination in voting and the Court's conception of itself as

the appropriate institution for limiting race-consciousness in

districting to this point. Substantively, the Court has rejected the

outcome-oriented interpretation of equal rights in redistricting.

Institutionally, does the Court's willingness to embrace this role

reflect the view that political and administrative institutions have

proven over the thirty years of civil rights enforcement unable or

unwilling to play this role? When Congress made vote dilution illegal in

1982, it took no responsibility to give dilution very specific or

coherent content. As bizarre districts flowered in the 1990s, the

Department of Justice disclaimed any role in enforcing any general norms

of redistricting;(69) as long as more minority districts were created,

the Department would not object. Indeed, critics charged the Department

itself with being the principal force steering the VRA toward a

maximization requirement.

In sum, the 1982 Congress cannot realistically be viewed as having

determined that extremely bizarre minority-controlled districts were

appropriate or required to enhance minority representation. Less

expansive understandings of vote dilution and nondiscrimination in

voting were controversial at the time and the context of Shaw was far

off the horizon. Whether Shaw is right or not, criticism that the Court

is overturning carefully considered congressional judgments is

unpersuasive. Shaw is better debated in terms of the substantive issues

its approach raises, rather than in terms of whether it is consistent

with an imagined congressional policy choice.

C. Myth #3: Shaw Is to the 1990s What Plessy v. Ferguson Was to

the 1890s

The rhetoric used in critiquing Shaw has at times been stunningly

inflammatory. Some critics directly equate Shaw with Plessy v.

Ferguson,(70) but if that were not enough, others have gone even

further: "Five Supreme Court justices have done to

African-Americans in Louisiana what no hooded Ku Klux Klan mobs were

able to do in the decade-remove an African-American from

Congress."(71) Perhaps this rhetoric reflects what Mark Kelman has

recently suggested is characteristic of current forms of identity

politics: "[D]emands will not readily be modulated because, unlike

traditional pluralist `interest' group demands, each group

represents not just one of an individual's many, often conflicting,

material interests, but instead represents a critical aspect of her

identity."(72) In such a politics, any loss, whatever the

justification, is tantamount both to complete loss and to all other

earlier losses, whatever their justifications.

To step back a bit from the moment's turbulent ideological

struggles, it is helpful to situate Shaw within the judicial history of

these issues. The pre-history of Shaw has largely been lost in the

polarized debates of the present, but it will no doubt surprise some to

discover that, from the start of the Court's encounter with

inclusionary race-conscious districting in the 1960s, many Justices have

viewed this mix of race and democratic institutions with profound

disquiet. Indeed, three of the Court's "liberal"

icons-Justices Douglas, Goldberg, and Brennan-expressed positions not so

different from those in today's Shaw decisions. These three

Justices viewed race-conscious districting either as unconstitutional in

all circumstances, a position far more extreme than Justice

O'Connor's today; as unconstitutional in circumstances

comparable to those in Shaw itself; or, at a minimum, as raising

profound and troubling constitutional questions.

In Wright v. Rockefeller,(73) an ethnically and racially mixed

group of plaintiffs alleged that New York's congressional districts

in the 1960s had "`segregate[d] eligible voters by race and place

of origin"'(74) for the purpose of creating a safe Harlem

district that black and Puerto Rican residents would dominate. A

majority of the special three-judge federal court agreed with a version

of the theory Shaw adopted over thirty years later.(75) Judge Feinberg,

then a district judge and later a respected figure on the Second

Circuit, concluded that the Constitution would be violated if plaintiffs

could prove that the districts' lines had been drawn on a racial

basis. In his view, there was no need to prove vote dilution, because

"racially drawn districts per se would also violate the Equal

Protection clause."(76) Judge Murphy agreed that "plaintiffs

are not required to prove any diminution or dilution of their voting

rights . . . once they show that the district lines were constituted on

a racial basis."`(77) They differed over whether sufficient

evidence had been presented of racial/ethnic design for the districts.

Had Judge Feinberg found the evidence any stronger, this three-judge

federal court in the Second Circuit might have invalidated a

congressional district on a Shaw-like theory thirty years before


The Supreme Court circumvented the profound constitutional

questions presented on the same narrow and questionable grounds upon

which Judge Feinberg relied. Because plaintiffs had not presented any

direct proof of legislative intent to engage in race-conscious

districting, but had only offered as evidence the shapes of the

districts and their demographic patterns, the Court concluded that the

plaintiffs had not met their burden of establishing an intent to use

race and ethnicity in drawing the districts.(79) It did so despite the

extreme disparities in ethnic populations among adjoining districts and

the way the districts' contorted pattern of twists and turns

managed to include and exclude the relevant racial and ethnic

populations. Through this form of "judicial minimalism,"(80)

the Court managed to avoid confronting the constitutional question

plaintiffs had attempted to put squarely before the Court.

In dissent, Justice Douglas made clear his view that

"[r]acial boroughs are also at war with democratic

standards."(81) Justice Douglas did not take the fanciful view that

the Constitution required multiracial election districts; he saw no

violation in one racial group's dominating a district (as one

necessarily must) as long as such districts reflected genuine

neighborhoods. But when a district's architecture could "be

explained only in racial terms," Justice Douglas recoiled:

Racial electoral registers, like religious ones, have no place

in a

society that honors the Lincoln tradition--"of the people, by


people, for the people." Here the individual is important,

not his race,

his creed, or his color. The principle of equality is at war with


notion that District A must be represented by a Negro, as it is


the notion that District B must be represented by a Caucasian,


C by a Jew, District D by a Catholic, and so on. The racial


register system weights votes along one racial line more heavily


it does other votes That system, by whatever name it is called, is


divisive force in a community, emphasizing differences between

candidates and voters that are irrelevant in the constitutional

sense. Of

course race, like religion, plays an important role in the choices


individual voters make from among various candidates. But

government has no business designing electoral districts along


or religious lines . . .

When racial or religious lines are drawn by the State, the

multiracial, multireligious communities that our Constitution

seeks to

weld together as one become separatist; antagonisms that relate to

race or to religion rather than to political issues are generated;

communities seek not the best representative but the best racial


religious partisan. Since that system is at war with the


ideal, it should find no footing here.(82)

In the same case, Justice Goldberg, also dissenting, endorsed the

position that because "racial segregation was a criterion in--or a

purpose of--the districting of [an area]," the Equal Protection

Clause had been violated.(83) This is an even more demanding motive

standard than the one Shaw and its progeny adopt. The Court now holds

that race may be a criterion in or a purpose of districting, as long as

it does not become "the predominant factor."(84)

Consider also the words, of Justice Brennan, in his exquisitely

difficult struggle with race-conscious districting in United Jewish

Organizations v. Carey.(85) Justice Brennan distanced himself from a

plurality opinion that legitimated race-conscious districting without

regard to the legal basis upon which the architects of the redistricting

had based their decisions. In contrast, Justice Brennan was prepared to

accept such districting only when section 5 of the VRA required it as a

remedial response. In those circumstances, Justice Brennan argued,

Congress had weighed the reasons for and against race-consciousness,

while the Department of Justice would also actively be monitoring the

justifications for the use of race and the scope of its use. In those

specific circumstances, Justice Brennan argued, the use of race-oriented

remedies traced back to "substantial and careful

deliberations" in Congress, leading to "an unequivocal and

well-defined congressional consensus" that the reasons for and

against race-conscious voting systems justified "an activist

race-conscious remedial role."(86) But beyond where specifically

licensed through section 5 of the VRA, race-conscious districting raised

concerns too troubling for Justice Brennan to endorse. Thus, unlike the

plurality, he refused to reach the question of whether the Constitution

permitted race-conscious redistricting where section 5 did not require

it. In justifying this caution, Justice Brennan observed that

race-conscious districting had "the potential for reinvigorating

racial partisanship";(87) raised "serious questions of

fairness";(88) and contained "the potential for arousing race

consciousness."(89) Moreover, Justice Brennan warned, "we

cannot well ignore the social reality that even a benign policy of

assignment by race is viewed as unjust by many in our society" and

creates the "impression of injustice."(90)

Recalling the views of these earlier judges, many of whom occupy

the pantheon of judicial liberalism and constitutional racial

egalitarianism, might bring some perspective to charges that Shaw is the

Plessy of our time. Principles can change, of course, as judges and

others learn more about the complexity and intractability of social

problems.(91) The fact that judges from the 1960s until the 1980s

expressed constitutional understandings similar to those in Shaw does

not make those understandings right; it does not even establish that

those same judges would hold the same constitutional views today. But

Shaw has polarized the current Court along preexisting cleavages

conventionally identified in politically conservative and liberal terms,

and these divisions encourage casting Shaw as the site of clashing

ideological positions of profound difference. Recovering the historical

pattern of continual judicial concerns with race-conscious districting,

which led Justices Douglas and Goldberg to take an even more aggressive

position than Shaw itself adopts, offers a useful reminder that the mix

of race and politics at issue in Shaw has troubled many judges and

Justices, not just the five Justices who make up the current Shaw

majority.(92) There is no inherent normative authority in numbers, but

perhaps seeing the points of continuity between Shaw and prior judicial

views will facilitate more tempered analysis and debate. The suggestion

that Shaw and Plessy are kindred cases undermines serious and credible

analysis of contemporary racial redistricting.

D. Myth #4: Absent Vote Dilution, No Meaningful Harms Can Follow from

the Use of Extremely Bizarre Districting to Enhance Minority


A fourth criticism of Shaw starts from two factually accurate

premises: (1) that certain minority groups, which the VRA protects, are

underrepresented in typical legislative bodies compared to their

proportion of the population (either voting-age or total population);

and (2) that racially polarized voting continues to be prevalent,

particularly in the South.(93) Therefore, this argument continues, we

ought to modify territorial districting to any extent necessary to bring

about more racially and ethnically proportional representation.

Note several initial assumptions behind this view. First, it

assumes that fair districting and color-blind voting would produce

minority political representation roughly proportional to population.

But this might be too simple. Districting itself makes proportional

representation of various sorts unlikely along almost any single axis

(party, race, religion) unless the relevant divisions perfectly map onto

the geographic units that form the basis for districting. Second, the

ideological preferences of black voters are not distributed randomly;

black voters tend to be considerably more liberal than white voters and

cluster at one end of the distribution of political preferences.(94)

Whatever weight these two factors, and perhaps others, ultimately ought

to carry, they need to be taken into account in constructing an

appropriate baseline of "racially fair" representation.(95)

Second, arguments about proportional minority representation implicitly

emphasize "descriptive representation,"(96) or a

"politics of presence";(97) the argument assumes that our

primary concern should be with whether a sufficient number of

officeholders physically mirror the electorate. Public policy might

instead put primary emphasis on "substantive representation"

of minority interests, that is, whether the policies minorities favor

are "adequately" given voice, pursued, and adopted. While

descriptive representation might in theory enhance the likelihood of

substantive representation,(98) as a practical matter in the American

redistricting context, more proportional descriptive representation

might be achievable only at the weighty cost of declining substantive


For now, however, assume that descriptive representation ideally

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