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21 Mar 2017 - 08:28:44

Principled limitations on racial and partisan redistricting.

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


intent.(10)


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.


I. VOTING RIGHTS MYTHOLOGIES


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


applied.


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


jurisprudence.


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


not.(27)


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


implications.


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


plummeted.


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


demographics.(33)


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


debated.


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


why.


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


former.


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


Mathias?


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


representation.


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


Shaw.(78)


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


the


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


the


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


with


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


District


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


electoral


register system weights votes along one racial line more heavily


than


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


a


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


which


individual voters make from among various candidates. But


government has no business designing electoral districts along


racial


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


or


religious partisan. Since that system is at war with the


democratic


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


Representation


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


representation.(99)


For now, however, assume that descriptive representation ideally


o

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