It was precisely that mandate that led to the next sharp turn in the road. In redrawing the boundaries of congressional districts after the 1990 Census, legislators in North Carolina devised a plan that would create two predominantly black districts: this was done after an earlier plan with only one minority district was rejected by the Justice Department as insufficiently sensitive to the rights of black citizens. The shape of the second majority-minority district, the Twelfth, was “dramatically irregular,” snaking 160 miles along an interstate highway between Charlotte and Durham: an African-American state representative quipped that if “you drove down the interstate with both car doors open, you’d kill most of the people in the district.” That the boundaries of the Twelfth District were drawn with close attention to its racial composition was undisguised.
This new districting plan was challenged in a lawsuit filed by five white residents who claimed that their Fourteenth Amendment rights to equal protection had been violated by this pro-African American racial gerrymander. Those who brought the suit did not and could not claim that the votes of whites had been diluted: even if there were two black representatives to Congress, the white population would still be overrepresented in comparison to its proportion of the population. The plaintiffs charged instead that creating districts on the basis of race was per se unconstitutional and “violated their constitutional right to participate in a ‘color-blind’ electoral process.” Two of the three judges on an appeals court panel (both of whom had initially heard Gingles as well) rebuffed this claim and dismissed some of its more arcane arguments.81
The Supreme Court, however, reversed that decision by a narrow five to four vote in Shaw v. Reno (1993). Writing for the majority, Justice Sandra Day O’Connor (joined by Justices Rehnquist, Scalia, Kennedy, and Thomas) ruled that districting plans based on race were subject to “strict scrutiny” and that the North Carolina proposal was “so irrational on its face” that it could only be understood as an attempt to “segregate voters” racially. By ignoring traditional districting criteria (compactness, most importantly) and drawing boundaries based “solely” on race, North Carolina legislators were engaging in a form of “racial classification” that posed “a risk of lasting harm to our society.” According to O’Connor, racial classification itself was a wrong: racially defined voting districts, such as North Carolina’s Twelfth, would exacerbate patterns of bloc voting, reinforce racial stereotyping by suggesting that “members of the same racial group” voted alike, and lead elected officials to believe that their “primary obligation” was to represent only members of their own racial group rather than the entire district. At the heart of O’Connor’s opinion was an insistence on the constitutional and moral primacy of color-blindness. “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.” Minority opportunity districts thus were illegal if they departed significantly from traditional conceptions of compactness.82
Despite sharp dissents from four justices, the reasoning in Shaw was broadened two years later in Miller v. Johnson, a case in which the Supreme Court upheld a challenge to Georgia’s districts, particularly its elongated majority-minority Eleventh District. Although acknowledging that race commonly and legitimately would be a consideration in districting decisions, the Court ruled that it could not be the predominant factor and could not submerge traditional districting principles; a majority-minority district could withstand close scrutiny only if “convincing evidence” were presented that such remedial action was necessary for compliance with the Voting Rights Act. The majority opinion, written by Justice Kennedy, criticized the Justice Department for pressuring states to maximize black representation and hinted that the Voting Rights Act itself might violate the Fourteenth Amendment.83
Meanwhile, in another Georgia case, Holder v. Hall, the Court declined to offer support to black plaintiffs seeking to gain a role in their county government. The case originated in Bleckley County, Georgia, a county that was 20 percent black. Bleckley had been governed since 1912 by a one-person commission, and the elected commissioner always had been white. In the mid-1980s, the Georgia legislature authorized the county to adopt a six-person commission, five of whom would be elected by single-member districts, but the electorate voted not to adopt the plan. Six African-American voters sued, seeking to compel the courts to institute a multimember commission so that blacks could be represented in the county government. In a fragmented set of opinions, the Court refused to do so. What shaped the decision was the Court’s discomfort with being asked to determine the structure of governance of Bleckley County rather than the apportionment of existing seats on a council or commission. Both Justice Kennedy and Justice O’Connor argued that the courts could not take such an action in the absence of a baseline indicating how large a government body should be or what degree of minority representation it ought to accommodate. Their logic pointed directly to a difficulty in operationalizing the concept of dilution. “Where there is no objective and workable standard for choosing a reasonable benchmark by which to evaluate a challenged voting practice, it follows that the voting practice cannot be challenged as dilutive.”84
A concurring opinion written by Justice Clarence Thomas, joined by Justice Antonin Scalia, went further, delivering a blistering attack on the entire project of preventing the dilution of votes. Calling for “a systematic reassessment,” Thomas maintained that the legal definition of the “right to vote” ought to be narrowed back to its pre-1969, pre-Allen parameters: he argued that the Voting Rights Act guaranteed individuals the right to cast their votes and have them “fairly counted” but not the right to be protected against vote dilution. “By construing the Act to cover potentially dilutive electoral mechanisms, we have immersed the federal courts in a hopeless project of weighing questions of political theory—questions judges must confront to establish a benchmark concept of an ‘undiluted’ vote.” Thomas rejected the notion that proportionality was an apt benchmark and dismissed the totality of circumstances standard as “an empty incantation . . . that serves to hide the drive for proportionality that animates our decisions.” Even more “pernicious,” Thomas maintained, was the prevailing assumption “that members of racial and ethnic groups must all think alike on important matters of public policy.” Although much criticized, Thomas’s opinion made clear his own objective: undoing the 1982 amendments to the Voting Rights Act and terminating the Court’s attempts to superintend the racial composition of electoral districts.85
These three cases—Shaw, Miller, and Holder—were critical steps in what was becoming a disorderly retreat from the effort to prevent the dilution of minority votes and promote the election of minority officials. In a handful of additional cases decided between 1994 and 1998, an always divided and sometimes splintered Supreme Court promoted color-blind districting while refusing to outlaw majority-minority districts per se. The Court ruled that states had no obligation to maximize the number of such districts as long as minorities were reasonably represented, yet it eschewed demographic proportionality as a benchmark of reasonableness. The Court continued to insist, as it had in Miller, that race could not be the predominant factor in districting, but it offered no clear definition of predominance and declined to reveal how minority opportunity districts could be created without conscious effort. The Court was divided about the importance of compactness or bizarre shapes in drawing district boundaries, and it seemed bewildered by the challenge of disentangling racial motives from the more traditional (and acceptable) partisan motives that had long played a role in districting decisions. Not surprisingly, uncertainty reigned among the lower courts and in the civil rights division of the Justice Department. In 1996, the confusion and bitterness surrounding the issue prompted the generally temperate Justice Souter to call for the Court’s �
��withdrawal from the presently untenable state of the law.”86
An apt symbol of the state of affairs was the enduring uncertainty of the boundaries of North Carolina’s congressional districts: districting schemes designed to satisfy the cross-pressures of the law shuttled from the legislature to the Justice Department to the district court to the Supreme Court and then back again. Shaw v. Reno (which became known as Shaw I) was followed in 1996 by Shaw v. Hunt (Shaw II ), in which the Court again rejected the legislature’s plan for the Twelfth District on the grounds that it was a “predominantly racial” gerrymander that was not narrowly tailored to serve a compelling state interest. Five years later, in Hunt v. Cromartie (Shaw III ), the Court finally did approve a districting map for North Carolina even though the redrawn Twelfth District would be 47 percent African American; overturning a lower court, a majority of the Supreme Court concluded that the plan was acceptable because the boundaries had been drawn primarily for partisan reasons, rather than as a racial gerrymander. Race could be a legitimate consideration in districting but it could not be the “dominant and controlling” one.87
The unsettled state of the law led many observers to predict a bumper crop of problems as state legislatures and commissions around the nation prepared to draw new electoral maps after the 2000 census. But the anticipated chaos never materialized. Whatever the intricacies of the law and the ambiguities of some of its underlying concepts, most legislatures took from the Supreme Court’s decisions a few broad guidelines: the creation of majority-minority districts to promote minority representation was acceptable as long as the districts were not too misshapen (ideally majority-minority districts would be “naturally occurring”); attempts to achieve demographic proportionality would be frowned upon; and electoral maps ought to be defensible in terms of “traditional” districting principles, such as compactness and partisan interest. With most jurisdictions following these rough guidelines, legal challenges were fewer than expected, and the Supreme Court itself gradually began to reduce its role as active arbiter of congressional and legislative districting plans.88
Still, neither the law nor conditions on the ground remained static after 2000. One significant—and revealing—development unfolded in Georgia where Democrats, like their colleagues in numerous other states, came to the conclusion that majority-minority districts did not necessarily serve the party’s interests. Although creating districts with African-American majorities virtually guaranteed the election of black Democratic representatives, concentrating the African-American community in those districts lessened its electoral strength (and that of the Democratic Party) elsewhere in the state. With control of the state senate up for grabs, the Democratic majority in the legislature—30 percent of which was black—drew up a districting plan that reduced the number of senate districts in which blacks constituted a majority of registered voters while increasing the number of districts in which coalitions of black and white Democrats would have a good chance of electing their preferred candidates. The claim that these “coalition” or “influence” districts would not diminish black representation was strengthened by mounting evidence that some whites would, in fact, vote for African-American candidates.89
The Democratic districting plan was adopted by the legislature with the support of nearly all of the state’s African-American legislators—and without a single Republican vote. It was quickly challenged in federal court as a violation of the “non retrogression” standard that been in place since the late 1970s. (That standard prohibited any reduction in the number of safe majority-minority districts or in the ability of African Americans to elect their preferred candidates.) The Supreme Court, however, upheld the districting plan in 2003, ruling in Georgia v. Ashcroft that the “non retrogression” standard ought not be applied mechanically, that a variety of “relevant circumstances” ought to be considered, including the “extent of the minority group’s opportunity to participate in the political process.” Recognizing that the political configuration of Georgia and other southern states had changed significantly over the preceding twenty-five years, that African Americans were both voting and being elected to office, the Court sanctioned coalition or influence districts as potentially reasonable alternatives to districts with outright black majorities.90
The idea of coalition districts (as well as the Court’s decision) was embraced by some legal analysts and civil rights leaders, including Georgia congressman John Lewis who affirmed that the South had “come a great distance” since the 1970s. Others in the civil rights community, however, worried that Georgia v. Ashcroft could encourage districting schemes that would eliminate majority-minority districts, redistribute the black population among numerous majority-white districts, hinder the election of African-American candidates, and undermine the ability of “minority communities to have their voices heard in legislatures.” Responding to these concerns, Congress in 2006 modified the wording of section 5 of the Voting Rights Act, effectively overruling Georgia v. Ashcroft and making it more difficult for majority-minority districts to be converted into influence districts; this shift was supported, for different reasons, by both Republicans and civil rights groups.91
One further wrinkle in the law emerged from a lawsuit challenging a congressional districting map in Texas that was drawn up after Republicans gained control of the state legislature in 2002. In the governing opinion of a complex, multipronged case (League of United Latin American Citizens v. Perry), Justice Anthony Kennedy—who had replaced retired Justice O’Connor as the swing vote in districting decisions—criticized a new majority Hispanic district because it lacked “cultural” as well as “geographic” compactness. The concept of “cultural compactness” stemmed from Kennedy’s concern that the Hispanic majority was achieved by yoking together Hispanic communities that were socioeconomically very different from one another—and accordingly might have quite divergent political interests. “A State may not assume from a group of voters’ race,” wrote Kennedy, “that they think alike, share the same political interests, and will prefer the same candidates.” This challenge to the essentialist presumption that all members of a minority group had shared political goals played only a small role in the outcome of LULAC v. Perry, but it had potentially far-reaching implications for the future construction of majority-minority districts.92
After several decades of Supreme Court cases and congressional action, thus, the law governing the relationship between race and districting had still not reached a resting point. As late as 2008, key questions (regarding “influence” districts, for example) lacked clear answers, and there were few principles that seemed certain to survive shifting political alignments in the states or changes in the composition of the Supreme Court. One small emblem of the uncertainty was the utter lack of consensus among legal scholars about the directions in which the law was heading—or even about the meaning of the Supreme Court’s most recent decisions.93
Politics and Theory
The conflicts over districting and dilution issues—conflicts that split the Supreme Court, generated sharp polemics among legal scholars, and helped to kill President Clinton’s nomination of Lani Guinier as Assistant Attorney General for Civil Rights in 1993—had multiple sources. Most superficially, these conflicts had (and have) a partisan dimension. African Americans have tended to vote overwhelmingly Democratic in recent decades, and enhancing their voting power consequently served the interests of the Democratic Party while disadvantaging Republicans. State legislators always have drawn district boundaries with one eye on their partisan impact, and it is no accident that the political parties and their allies have played a role in districting litigation. Conservative Republican Senator Jesse Helms, for example, filed an amicus brief in Shaw v. Reno. Partisan interests no doubt also shaped the thinking of ostensibly neutral participants in the battle, including district court judges and Justice Department lawyers. Even the august members of the Supreme Court do not seem to be immune to ideological considerations that serve part
isan interests: the Court has often divided largely on partisan lines—and broad swings in its positions have coincided with its changing political composition.94
The legal knots and partisan alignments have also mirrored broader currents in popular attitudes toward race. The egalitarian impulses so celebrated in the 1960s were blunted during the final decades of the twentieth century, and large segments of white society came to oppose programs that privileged racial minorities in order to rectify past injustices. Affirmative action policies, in hiring and education, were strenuously attacked by Republican politicians and often vitiated by elected officials or successfully challenged in the courts. That the implementation of parts of the Voting Rights Act drew similar fire is altogether congruent with this conservative drift: when applied to districting issues, the act, as amended and as interpreted by the Warren Court, resembled an affirmative action program in the arena of electoral representation. Particularly for Republicans, often supported by a majority of white voters in the South, opposition to the aggressive enforcement of the Voting Rights Act was a popular as well as self-interested stance.
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