Bush v. Vera
116 S. Ct. 1941, 1996 U.S. LEXIS 3882, 517 US 952 (1996)
Rule of Law:
Racial gerrymandering claims trigger strict scrutiny when race is the "predominant factor" motivating a legislature's redistricting decision, subordinating traditional race-neutral principles, and such districts violate the Equal Protection Clause if they are not narrowly tailored to serve a compelling state interest, such as compliance with the Voting Rights Act, particularly when they exhibit excessively noncompact and bizarre shapes.
Facts:
- The 1990 census revealed a population increase in Texas, largely in urban minority populations, entitling the state to three additional congressional seats.
- The Texas Legislature promulgated a redistricting plan that created District 30 (a new majority-African-American district in Dallas County), District 29 (a new majority-Hispanic district in and around Houston in Harris County), and reconfigured District 18 (adjacent to District 29) to make it a majority-African-American district.
- The Department of Justice pre-cleared this plan under Section 5 of the Voting Rights Act (VRA) in 1991.
- District 30, with 50% African-American and 17.1% Hispanic population, has a compact core in south Dallas but extends "narrow and bizarrely shaped tentacles" primarily to the north and west, crossing two county lines.
- Districts 18 and 29 in Harris County interlock "like a jigsaw puzzle," exhibit extremely irregular boundaries, and were drawn with utter disregard for city limits, local election precincts, and voter tabulation district lines.
- The primary tool for drawing district lines was a computer program (REDAPPL) that allowed manipulation of lines with block-by-block racial data, which was unprecedentedly detailed compared to other demographic information.
- Texas officials, in a VRA § 5 submission, reported a legislative consensus that the new districts "should be configured in such a way as to allow members of racial, ethnic, and language minorities to elect Congressional representatives."
- The redistricting process involved significant efforts at incumbency protection, with legislators carving out districts of apparent supporters and adding appendages to connect their residences to those districts.
Procedural Posture:
- Six Texas voters (plaintiffs), including residents of Districts 18, 29, and 30, challenged the Texas redistricting plan in the United States District Court for the Southern District of Texas.
- A three-judge panel of the District Court found Districts 18, 29, and 30 unconstitutional.
- The Governor of Texas, private intervenors, and the United States (as intervenor) appealed the District Court's decision to the Supreme Court of the United States.
- The Supreme Court noted probable jurisdiction.
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Issue:
Does a state's congressional redistricting plan, which creates majority-minority districts with extremely irregular shapes by subordinating traditional, race-neutral districting principles to racial considerations, constitute unconstitutional racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment, even if the state's stated purpose is to comply with the Voting Rights Act?
Opinions:
Majority - Justice O’Connor
Yes, the Texas congressional districts 18, 29, and 30 constitute unconstitutional racial gerrymandering. The Court affirmed the District Court's finding that race was the "predominant factor" in drawing these districts, subordinating traditional race-neutral districting principles like compactness and regularity. The highly irregular shapes, the explicit legislative intent to create majority-minority districts, and the manipulation of district lines using unprecedentedly detailed block-by-block racial data demonstrated this predominance. Although the State also cited incumbency protection as a factor, the evidence showed that political gerrymandering was often accomplished by using race as a proxy for political affiliation, which itself is a racial stereotype requiring strict scrutiny. Once strict scrutiny applies, the districts must be narrowly tailored to serve a compelling state interest. While the Court assumed, without deciding, that compliance with the "results" test of VRA § 2(b) and remedying past discrimination are compelling state interests, these districts failed the narrow tailoring requirement. Section 2 does not require a state to create districts that are not "reasonably compact." Districts 18, 29, and 30, with their bizarre shapes and noncompactness predominantly attributable to racial manipulation, exceeded what Section 2 could justify. They disrupt nonracial bases of political identity and intensify emphasis on race. Similarly, the increase in the African-American population in District 18 went beyond what was "reasonably necessary to avoid retrogression" under VRA § 5. The Court declined to abandon the Shaw I doctrine, emphasizing stare decisis and the commitment to eliminating unjustified racial stereotyping.
Concurring - Justice O’Connor
Justice O'Connor wrote separately to state unequivocally that compliance with the results test of VRA § 2(b) is a compelling state interest. She argued that states and lower courts need clear guidance and that given the presumption of constitutionality for statutes and Congress's authority under the Reconstruction Amendments, states should be allowed to assume § 2's constitutionality. She outlined a framework where states can intentionally create majority-minority districts and take race into consideration without strict scrutiny if traditional districting criteria are not subordinated to race. Strict scrutiny applies only when neglect of traditional criteria is predominantly due to racial misuse. If a state has a strong evidentiary basis for Gingles factors, it can create a majority-minority district. Such a district would be narrowly tailored if it "substantially addresses" potential § 2 liability, is reasonably compact, and does not deviate substantially from a hypothetical court-drawn § 2 district for predominantly racial reasons. Bizarrely shaped, noncompact districts that neglect traditional principles for predominantly racial reasons are unconstitutional.
Concurring - Justice Kennedy
Justice Kennedy joined the plurality opinion but clarified his position on the application of strict scrutiny. He disagreed with the plurality's suggestion that strict scrutiny would not apply to all cases of intentional creation of majority-minority districts, stating that this point was unnecessary to the decision and that he considered strict scrutiny applicable whenever a state foreordains that one race be the majority in a certain number of districts. On narrow tailoring, he agreed the districts were not reasonably necessary for § 2 compliance because there was no evidence that two reasonably compact majority-minority districts could have been drawn in Harris County. He emphasized that the first Gingles condition refers to the compactness of the minority population, not the resulting district, and if a compact majority-minority district cannot be created due to population dispersion, § 2 does not require it. He reiterated that race-based districting is only justified as reasonably necessary to cure an anticipated § 2 violation and cannot be used as a proxy for other interests.
Concurring in judgment - Justice Thomas
Justice Thomas, joined by Justice Scalia, concurred in the judgment, but asserted that the application of strict scrutiny was never a close question. He contended that Adarand Constructors, Inc. v. Peña established that all governmental racial classifications must be strictly scrutinized, and Miller v. Johnson showed that a state's concession of intentionally creating majority-minority districts is sufficient to prove race was a predominant factor. In his view, the intentional creation of a majority-minority district means the legislature affirmatively undertook to create a district that would not have existed "but for the express use of racial classifications," which necessarily subordinates traditional race-neutral principles and means race predominates. Texas's explicit admission that it intentionally created these districts to comply with the VRA was sufficient to invoke strict scrutiny. He was willing to assume a compelling state interest but agreed the districts were not narrowly tailored.
Dissenting - Justice Stevens
Justice Stevens, joined by Justices Ginsburg and Breyer, dissented, arguing the Court misapplied its own racial gerrymandering tests. He contended that the Court ignored the "complex interplay" of political and geographical considerations, suggesting that Texas's entire map was a political, not racial, gerrymander, as evidenced by the existence of equally bizarre majority-Anglo districts like District 6. He argued that even if strict scrutiny applied, the districts should be found constitutional because they consider race only as necessary to comply with the Voting Rights Act while achieving other race-neutral political and geographical requirements. He criticized the majority for finding fault with the state's intent to create majority-minority districts, noting that such intent is not inherently unconstitutional. He further argued that using race as a proxy for political affiliation is not irrational or invidious if reliable statistical evidence supports it. Stevens expressed concern that the Court's "analytically distinct" jurisprudence creates confusion, shifts responsibility to courts, and forces states to draw districts "just right," limiting their ability to apply traditional districting principles for minority voters while allowing bizarre shapes for white voters. He concluded that the Court's focus on racial gerrymandering distracts from the more significant harm of politically motivated gerrymandering.
Dissenting - Justice Souter
Justice Souter, joined by Justices Ginsburg and Breyer, dissented, criticizing Shaw I jurisprudence for failing to identify a distinguishable injury, provide clear standards, or offer practical guidance for distinguishing lawful from unlawful use of race. He argued that the "expressive harm" identified in Shaw I bears little resemblance to traditional equal protection harms and that the Court's rhetoric of "political apartheid" is inapposite for districts created to empower minorities. He highlighted the conceptual inadequacy: Shaw I condemns the reinforcement of the notion that racial groups vote alike, yet the Gingles factors for VRA § 2 liability depend on racial-bloc voting. He stated that neither the "predominant factor" nor "substantial disregard" standards are manageable in the "untidy world of politics" because traditional districting principles (e.g., community integrity, incumbency protection) are often inseparable from racial considerations in racially polarized areas. This creates "endemic unpredictability," a "stalemate" for states trying to comply with both Shaw and the VRA, shifting districting responsibility to federal courts. Souter acknowledged the Court's assumption that VRA compliance is compelling, but noted the "exorbitant price" of limiting states' discretion. He suggested that if Shaw is not overruled, it should be confined by a quantifiable shape test or eliminated entirely, as the current framework leads to an unworkable and undesirable intrusion into state political processes.
Analysis:
This case significantly refined the Shaw v. Reno doctrine on racial gerrymandering by clarifying when strict scrutiny is triggered. It established that race is the "predominant factor" when drawing district lines, even if other considerations like incumbency protection are present, especially if race is used as a proxy for political affiliation, which is considered a racial stereotype. The decision clarified that merely creating a majority-minority district does not automatically trigger strict scrutiny, but extreme deviations from traditional districting principles, combined with detailed racial data manipulation and explicit racial intent, will. Crucially, the Court articulated that compliance with VRA Section 2 (and possibly Section 5) may be a compelling state interest, but districts must still be "narrowly tailored," meaning they must be "reasonably compact" and not subordinate traditional principles to race substantially more than necessary. The case increases the burden on states to justify bizarrely shaped majority-minority districts, potentially making it harder to proactively address vote dilution without risking constitutional challenge. It continues to emphasize the judicial role in scrutinizing districting outcomes, balancing the VRA's remedial goals against the Equal Protection Clause's anti-discrimination mandate.
