Bush v. Vera
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 the district 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. According to 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 mixed motive 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 and noncompact 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, the districts' shapes were unexplainable on grounds other than race. Thus, strict scrutiny applied to all three districts and so the Court had to consider if racial considerations embodied in defining the three districts were narrowly tailored 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, to remedy 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 obstruction of 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 also suggested 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 18 was 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 not prevent 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 had a 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, joined by Justices Ginsburg and Breyer, reasoned that strict scrutiny should not apply because racial considerations were not predominant over other districting factors (especially incumbent protection). Even under strict scrutiny, the decision of the district court should not be affirmed: race was considered in creating the three districts only to the extent necessary to comply with the state'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 Ginsburg and 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.