Appellants
George W. Bush, Governor of Texas, et al.
Appellees
Al Vera, et al.
Appellants' Claim
The Texas state legislature created three new congressional districts with African American and Hispanic majorities to better reflect 1990 census demographics. Appellants claimed that these districts were narrowly tailored to satisfy the strict scrutiny requirement in the Equal Protection Clause of the Fourteenth Amendment.
Chief Lawyers for Appellants
Javier Aguilar (lawyer for state appellants), Paul Bender (lawyer for federalappellant), and Penda D. Hair (lawyer for private appellants)
Chief Lawyers for Appellees
Daniel E. Troy
Justices for the Court
Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, Clarence Thomas
Justices Dissenting
Stephen Breyer, Ruth Bader Ginsburg, David H. Souter, John Paul Stevens
Place
Washington, D.C.
Date of Decision
13 June 1996
Decision
Although three congressional districts were not sufficiently tailored to protect minority rights, they were, nonetheless unconstitutionally created because racial factors predominated in their creation.
Significance
The Voting Rights Act seeking protection of the electoral minority seemed atodds with the Equal Protection Clause because, in seeking to protect minorityrights and preserve majority privilege, each statute was oppositionally focused. After Shaw v. Reno (1993), the Supreme Court's strict (districting) scrutiny analysis applied to newly created districts. However, states experienced great difficulty creating new districts to comply with the Voting Rights Act while simultaneously satisfying the Equal Protection Clause. To add to the confusion, districts created to protect minorities' electoral rights inthe state of Texas (supported by the Department of Justice and various civilorganizations), were declared unconstitutionally formed by the Supreme Court.
The 1990 census prompted states to reconfigure voting districts to enable minorities to elect their own representatives to Congress. New districts often relied heavily on racial considerations while simultaneously applying traditional districting principles. The excessive use of the racial factor in creating new "minority districts" (a majority of voters of one ethnicity) led to challenges in district courts and the U.S. Supreme Court for alleged violationsof the Equal Protection Clause.
Shaw v. Reno (1993) and Miller v. Johnson (1995) were milestones in the U.S. Supreme Court's view of the constitutionality of redistricting.In these two cases, the Court abandoned the pre-1990 census practice of assessing the constitutionality of redistricting under the Equal Protection Clause, which defined identifiable harm as infringement of rights of an individualvoter (who was a member of a class subjected to differential treatment by redistricting changes). This practice held that there were tangible, unconstitutional consequences of racial considerations in redistricting. Shaw and Miller thus established the Court's principal of "reasonable" use ofracial factors in redistricting by identifying putative harm as nonracial traditional districting principles subordinated by racial considerations. Because all new "majority-minority" districts were thus struck down, the Court's rulings provoked controversy concerning the dilution of the previous standardand the protection of a minority's right to have congressional representatives. Yet, the Supreme Court affirmed this practice in Bush v. Vera.
Three Districts Challenged
In reaction to the 1990 census, the Texas state legislature made plans for redistricting in order to remedy past and present racial discrimination and tocomply with two clauses of the Voting Rights Act. The first clause prohibiteddenial or abridgement of the right of any citizen to vote because of race orcolor and prohibited obstruction of a minority's ability to elect representatives of their choice. The second clause sought to prevent suppression of racial minorities with respect to exercise of the electoral franchise. Thus, thestate legislature made plans for redistricting and created three new districts. Voting majorities in two new districts were African American; another district was largely Hispanic. Following redistricting, six Texas voters challenged the districts as racial gerrymanders in violation of the Equal ProtectionClause (a gerrymander is an election district resulting from arranging political divisions of a city, state, county, etc. to give one political party anadvantage in elections).
The case first came before the District Court for the Southern District of Texas. Six voters, as plaintiffs, claimed they were personally subjected to racial classification by the state's redistricting and consequently denied equalprotection of law. Defendant George Bush, governor of Texas (joined by private intervenors and the Department of Justice), claimed that Texas was guidedby a lawful concern to remedy a long history of racial discrimination and toavoid liability under the Voting Rights Act. He admitted that the state intentionally created "majority-minority" districts, but that the state legislation adhered to traditional districting principles (such as incumbency protection and conformity to political subdivisions) and race did not override those principles. Bush claimed that, according to the Voting Rights Act, the protection of the electoral minority was a compelling state interest and therefore did not violate the Equal Protection Clause. (This clause prohibits varying treatment of citizens, unless the difference in treatment is related to a legitimate state interest).
The three-judge district court first established in Miller v. Johnsonthat strict judicial scrutiny applied to the case because districting principles were "subordinated to race." Here, the Court held, the bizarre shapes ofseveral districts showed that race did override other factors. Because strictscrutiny was satisfied if state actions were narrowly tailored to a compelling state interest, the Court looked at evidence (computer programs used for redistricting plans that contained mostly racial data) and found that "minority numbers were virtually all that mattered in the shape of those districts."Since that was not "narrow tailoring," the Court concluded that the three districts were racially gerrymandered and held them unconstitutional.
A Difficult Decision
The Supreme Court's task was difficult and complicated because two majority justices filed an opinion concurring with the opinion of three other justices.(Dissenting justices were the same ones who dissented in the Court's decisions in Shaw v. Reno and Miller v. Johnson.) The decision of thedistrict court was upheld.
Justice O'Connor, joined by Chief Justice Rehnquist and Justice Kennedy, wrote for the majority. The Court first found one of the six plaintiffs lacked standing because he did not reside in any of the challenged districts. They then examined the principle of strict judicial scrutiny in this case. Accordingto Miller, strict scrutiny applied where race was "the predominant factor" motivating the drawing of district lines and where traditional, race-neutral districting principles were subordinated to race. Since this was a mixedmotive case (factors other than race, particularly incumbency protection, did influence the legislature), O'Connor wrote that each of the challenged districts had to be examined.
O'Connor first looked at District 30, which had an African American majority,and found that it was subject to strict scrutiny. The district's bizarre andnoncompact shape supported the claim that computer data used in redistricting plans contained significantly more information on racial factors than on other, nonracial considerations. One of the nonracial considerations, incumbency protection, was clearly used, but race was also used as a proxy for political considerations (the legislature used racial stereotypes when concluding that all African Americans had voted and would vote for the Democratic Party).
Interlocking Districts 18, which held an African American majority, and 29, with its Hispanic American majority, were also subject to strict scrutiny. Their bizarre shape and utter disregard of city limits, local election precincts, and voter tabulation district lines revealed that the legislature again chiefly used racial factors. Though Bush and other appellants stated that incumbency protection played a role in determining the bizarre district lines, thedistricts' shapes were unexplainable on grounds other than race. Thus, strictscrutiny applied to all three districts and so the Court had to consider ifracial considerations embodied in defining the three districts were narrowlytailored to further a compelling state interest.
The attorney for the appellants suggested the state had three compelling interests: to avoid state liability under section 2 of the Voting Rights Act, toremedy past and present racial discrimination, and to comply with the "nonretrogression" principle of the Voting Rights Act.
Section 2 of the Voting Rights Act prohibits denial or abridgement of the right of any citizen to vote because of race or color and prohibits obstructionof a minority's ability to elect representatives of their choice. The Court noted that compliance to this section could be a compelling state interest, but a district drawn in order to satisfy it must not subordinate traditional districting principles more than was reasonably necessary. Looking at the districts' bizarre shapes, the Court found that the state legislature overemphasized race to the exclusion of other principles. Rejection of this argument alsosuggested the appellants' second argument was spurious (that districts remedied Texas's long history of discrimination against minorities).
The justices also rejected the argument that only the creation of District 18was justified by a compelling state interest in complying with the "nonretrogression" principle (section 5) of the Voting Rights Act. (This principle seeks to prevent suppression of racial minorities with respect to exercise of the electoral franchise.) The Court reasoned that the state action here did notprevent suppression of the minority's electoral rights but, on the contrary,substantially augmented the African American population percentage. Therefore, this district was not narrowly tailored to the avoidance of section 5 liability. The Court concluded that the three districts violated the Equal Protection Clause because they were not narrowly tailored to address the state's purported interest in protecting minority rights.
In a separate concurring opinion, Justice O'Connor emphasized that states hada compelling interest in avoiding liability under section 2 of the Voting Rights Act, and that states and courts were capable of distinguishing the appropriate and reasonably necessary uses of race from unjustified and excessive ones. Justice Kennedy also filed a concurring opinion, but reasoned if a state, in redistricting, foreordained that one race be the majority in a district,that did not necessarily mean that race was predominant.
Justice Thomas, joined by Justice Scalia, wrote an opinion concurring with the majority, arguing that strict scrutiny should always apply to intentional creation of a majority-minority district. In this case, strict scrutiny was already invoked because Texas admitted intentionally creating them. Furthermore, since racial considerations were predominant, the state's redistricting plans were not narrowly tailored to achieve asserted compelling state interests.
Two dissenting opinions were also filed. In the first Justice Stevens, joinedby Justices Ginsburg and Breyer, reasoned that strict scrutiny should not apply because racial considerations were not predominant over other districtingfactors (especially incumbent protection). Even under strict scrutiny, the decision of the district court should not be affirmed: race was considered increating the three districts only to the extent necessary to comply with thestate's responsibilities under the clauses of the Voting Rights Act while simultaneously achieving other nonracial political and geographical requirements. The dissenting justices also expressed concern about the Court's doctrine adopted in Shaw v. Reno because it lacked a definable constitutional core and could create significant harm to gerrymandering jurisprudence.
The second dissenting opinion, written by Justice Souter (joined by Ginsburgand Breyer) also maintained the Shaw doctrine had no satisfyingly defining principles and concluded that problems of Shaw v. Reno were caused by the Court's failure to provide a manageable standard to distinguish forbidden districting conduct from the application of traditional state districting principles.
Impact
Like the previous Shaw and Miller decisions, the ruling in Bush v. Vera was vigorously attacked. It divided the Supreme Court justices and was criticized by the four of them. Dissenters were joined by various civil rights organizations such as the American Civil Liberties Union. One ofits directors, Laughlin McDonald, predicted that "the inevitable consequenceof the Court's action will produce a Congress that is increasingly white at the time that the nation is becoming increasingly diverse." He said that the decision invited even more reverse discrimination claims by making it easier to trigger judicial strict scrutiny and harder to satisfy it. McDonald concluded that the strict scrutiny test was originally developed to deal with invidious racial discrimination. But after Shaw and Bush, the test was applied to legislative efforts to remedy that discrimination.
Nonetheless, the Court persisted in its course. Alhough the Department of Justice supported Texas, the Court continued striking down majority-minority districts created to protect the electoral rights of minorities. The Supreme Court found that race again predominated in their creation and other districtingprinciples were neglected. The Court held that more "narrow tailoring" (better balance between racial and other considerations) could satisfy both the Voting Rights Act and the Equal Protection Clause.
Related Cases
George W. Bush, Governor of Texas, et al.
Appellees
Al Vera, et al.
Appellants' Claim
The Texas state legislature created three new congressional districts with African American and Hispanic majorities to better reflect 1990 census demographics. Appellants claimed that these districts were narrowly tailored to satisfy the strict scrutiny requirement in the Equal Protection Clause of the Fourteenth Amendment.
Chief Lawyers for Appellants
Javier Aguilar (lawyer for state appellants), Paul Bender (lawyer for federalappellant), and Penda D. Hair (lawyer for private appellants)
Chief Lawyers for Appellees
Daniel E. Troy
Justices for the Court
Anthony M. Kennedy, Sandra Day O'Connor (writing for the Court), William H. Rehnquist, Antonin Scalia, Clarence Thomas
Justices Dissenting
Stephen Breyer, Ruth Bader Ginsburg, David H. Souter, John Paul Stevens
Place
Washington, D.C.
Date of Decision
13 June 1996
Decision
Although three congressional districts were not sufficiently tailored to protect minority rights, they were, nonetheless unconstitutionally created because racial factors predominated in their creation.
Significance
The Voting Rights Act seeking protection of the electoral minority seemed atodds with the Equal Protection Clause because, in seeking to protect minorityrights and preserve majority privilege, each statute was oppositionally focused. After Shaw v. Reno (1993), the Supreme Court's strict (districting) scrutiny analysis applied to newly created districts. However, states experienced great difficulty creating new districts to comply with the Voting Rights Act while simultaneously satisfying the Equal Protection Clause. To add to the confusion, districts created to protect minorities' electoral rights inthe state of Texas (supported by the Department of Justice and various civilorganizations), were declared unconstitutionally formed by the Supreme Court.
The 1990 census prompted states to reconfigure voting districts to enable minorities to elect their own representatives to Congress. New districts often relied heavily on racial considerations while simultaneously applying traditional districting principles. The excessive use of the racial factor in creating new "minority districts" (a majority of voters of one ethnicity) led to challenges in district courts and the U.S. Supreme Court for alleged violationsof the Equal Protection Clause.
Shaw v. Reno (1993) and Miller v. Johnson (1995) were milestones in the U.S. Supreme Court's view of the constitutionality of redistricting.In these two cases, the Court abandoned the pre-1990 census practice of assessing the constitutionality of redistricting under the Equal Protection Clause, which defined identifiable harm as infringement of rights of an individualvoter (who was a member of a class subjected to differential treatment by redistricting changes). This practice held that there were tangible, unconstitutional consequences of racial considerations in redistricting. Shaw and Miller thus established the Court's principal of "reasonable" use ofracial factors in redistricting by identifying putative harm as nonracial traditional districting principles subordinated by racial considerations. Because all new "majority-minority" districts were thus struck down, the Court's rulings provoked controversy concerning the dilution of the previous standardand the protection of a minority's right to have congressional representatives. Yet, the Supreme Court affirmed this practice in Bush v. Vera.
Three Districts Challenged
In reaction to the 1990 census, the Texas state legislature made plans for redistricting in order to remedy past and present racial discrimination and tocomply with two clauses of the Voting Rights Act. The first clause prohibiteddenial or abridgement of the right of any citizen to vote because of race orcolor and prohibited obstruction of a minority's ability to elect representatives of their choice. The second clause sought to prevent suppression of racial minorities with respect to exercise of the electoral franchise. Thus, thestate legislature made plans for redistricting and created three new districts. Voting majorities in two new districts were African American; another district was largely Hispanic. Following redistricting, six Texas voters challenged the districts as racial gerrymanders in violation of the Equal ProtectionClause (a gerrymander is an election district resulting from arranging political divisions of a city, state, county, etc. to give one political party anadvantage in elections).
The case first came before the District Court for the Southern District of Texas. Six voters, as plaintiffs, claimed they were personally subjected to racial classification by the state's redistricting and consequently denied equalprotection of law. Defendant George Bush, governor of Texas (joined by private intervenors and the Department of Justice), claimed that Texas was guidedby a lawful concern to remedy a long history of racial discrimination and toavoid liability under the Voting Rights Act. He admitted that the state intentionally created "majority-minority" districts, but that the state legislation adhered to traditional districting principles (such as incumbency protection and conformity to political subdivisions) and race did not override those principles. Bush claimed that, according to the Voting Rights Act, the protection of the electoral minority was a compelling state interest and therefore did not violate the Equal Protection Clause. (This clause prohibits varying treatment of citizens, unless the difference in treatment is related to a legitimate state interest).
The three-judge district court first established in Miller v. Johnsonthat strict judicial scrutiny applied to the case because districting principles were "subordinated to race." Here, the Court held, the bizarre shapes ofseveral districts showed that race did override other factors. Because strictscrutiny was satisfied if state actions were narrowly tailored to a compelling state interest, the Court looked at evidence (computer programs used for redistricting plans that contained mostly racial data) and found that "minority numbers were virtually all that mattered in the shape of those districts."Since that was not "narrow tailoring," the Court concluded that the three districts were racially gerrymandered and held them unconstitutional.
A Difficult Decision
The Supreme Court's task was difficult and complicated because two majority justices filed an opinion concurring with the opinion of three other justices.(Dissenting justices were the same ones who dissented in the Court's decisions in Shaw v. Reno and Miller v. Johnson.) The decision of thedistrict court was upheld.
Justice O'Connor, joined by Chief Justice Rehnquist and Justice Kennedy, wrote for the majority. The Court first found one of the six plaintiffs lacked standing because he did not reside in any of the challenged districts. They then examined the principle of strict judicial scrutiny in this case. Accordingto Miller, strict scrutiny applied where race was "the predominant factor" motivating the drawing of district lines and where traditional, race-neutral districting principles were subordinated to race. Since this was a mixedmotive case (factors other than race, particularly incumbency protection, did influence the legislature), O'Connor wrote that each of the challenged districts had to be examined.
O'Connor first looked at District 30, which had an African American majority,and found that it was subject to strict scrutiny. The district's bizarre andnoncompact shape supported the claim that computer data used in redistricting plans contained significantly more information on racial factors than on other, nonracial considerations. One of the nonracial considerations, incumbency protection, was clearly used, but race was also used as a proxy for political considerations (the legislature used racial stereotypes when concluding that all African Americans had voted and would vote for the Democratic Party).
Interlocking Districts 18, which held an African American majority, and 29, with its Hispanic American majority, were also subject to strict scrutiny. Their bizarre shape and utter disregard of city limits, local election precincts, and voter tabulation district lines revealed that the legislature again chiefly used racial factors. Though Bush and other appellants stated that incumbency protection played a role in determining the bizarre district lines, thedistricts' shapes were unexplainable on grounds other than race. Thus, strictscrutiny applied to all three districts and so the Court had to consider ifracial considerations embodied in defining the three districts were narrowlytailored to further a compelling state interest.
The attorney for the appellants suggested the state had three compelling interests: to avoid state liability under section 2 of the Voting Rights Act, toremedy past and present racial discrimination, and to comply with the "nonretrogression" principle of the Voting Rights Act.
Section 2 of the Voting Rights Act prohibits denial or abridgement of the right of any citizen to vote because of race or color and prohibits obstructionof a minority's ability to elect representatives of their choice. The Court noted that compliance to this section could be a compelling state interest, but a district drawn in order to satisfy it must not subordinate traditional districting principles more than was reasonably necessary. Looking at the districts' bizarre shapes, the Court found that the state legislature overemphasized race to the exclusion of other principles. Rejection of this argument alsosuggested the appellants' second argument was spurious (that districts remedied Texas's long history of discrimination against minorities).
The justices also rejected the argument that only the creation of District 18was justified by a compelling state interest in complying with the "nonretrogression" principle (section 5) of the Voting Rights Act. (This principle seeks to prevent suppression of racial minorities with respect to exercise of the electoral franchise.) The Court reasoned that the state action here did notprevent suppression of the minority's electoral rights but, on the contrary,substantially augmented the African American population percentage. Therefore, this district was not narrowly tailored to the avoidance of section 5 liability. The Court concluded that the three districts violated the Equal Protection Clause because they were not narrowly tailored to address the state's purported interest in protecting minority rights.
In a separate concurring opinion, Justice O'Connor emphasized that states hada compelling interest in avoiding liability under section 2 of the Voting Rights Act, and that states and courts were capable of distinguishing the appropriate and reasonably necessary uses of race from unjustified and excessive ones. Justice Kennedy also filed a concurring opinion, but reasoned if a state, in redistricting, foreordained that one race be the majority in a district,that did not necessarily mean that race was predominant.
Justice Thomas, joined by Justice Scalia, wrote an opinion concurring with the majority, arguing that strict scrutiny should always apply to intentional creation of a majority-minority district. In this case, strict scrutiny was already invoked because Texas admitted intentionally creating them. Furthermore, since racial considerations were predominant, the state's redistricting plans were not narrowly tailored to achieve asserted compelling state interests.
Two dissenting opinions were also filed. In the first Justice Stevens, joinedby Justices Ginsburg and Breyer, reasoned that strict scrutiny should not apply because racial considerations were not predominant over other districtingfactors (especially incumbent protection). Even under strict scrutiny, the decision of the district court should not be affirmed: race was considered increating the three districts only to the extent necessary to comply with thestate's responsibilities under the clauses of the Voting Rights Act while simultaneously achieving other nonracial political and geographical requirements. The dissenting justices also expressed concern about the Court's doctrine adopted in Shaw v. Reno because it lacked a definable constitutional core and could create significant harm to gerrymandering jurisprudence.
The second dissenting opinion, written by Justice Souter (joined by Ginsburgand Breyer) also maintained the Shaw doctrine had no satisfyingly defining principles and concluded that problems of Shaw v. Reno were caused by the Court's failure to provide a manageable standard to distinguish forbidden districting conduct from the application of traditional state districting principles.
Impact
Like the previous Shaw and Miller decisions, the ruling in Bush v. Vera was vigorously attacked. It divided the Supreme Court justices and was criticized by the four of them. Dissenters were joined by various civil rights organizations such as the American Civil Liberties Union. One ofits directors, Laughlin McDonald, predicted that "the inevitable consequenceof the Court's action will produce a Congress that is increasingly white at the time that the nation is becoming increasingly diverse." He said that the decision invited even more reverse discrimination claims by making it easier to trigger judicial strict scrutiny and harder to satisfy it. McDonald concluded that the strict scrutiny test was originally developed to deal with invidious racial discrimination. But after Shaw and Bush, the test was applied to legislative efforts to remedy that discrimination.
Nonetheless, the Court persisted in its course. Alhough the Department of Justice supported Texas, the Court continued striking down majority-minority districts created to protect the electoral rights of minorities. The Supreme Court found that race again predominated in their creation and other districtingprinciples were neglected. The Court held that more "narrow tailoring" (better balance between racial and other considerations) could satisfy both the Voting Rights Act and the Equal Protection Clause.
Related Cases
- Gomillion v. Lightfoot, 364 U.S. 339 (1960).
- Davis v. Bandemer, 478 U.S. 109 (1986).
- Shaw v. Reno, 509 U.S. 630 (1993).
- Miller v. Johnson, 515 U.S. 900 (1995).
- Shaw v. Hunt, 517 U.S. 899 (1996).
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