On June 28, 1993, in Shaw v. Reno, the Supreme Court held that it is presumptively unconstitutional (and too much like "political apartheid") for states to manipulate voting-district lines for the purpose of moving black or Hispanic voters toward proportional representation-at least if the resulting shapes are "bizarre."
On June 30, 1994, in Johnson v. De Grandy, the Court suggested that the Voting Rights Act may often require states to manipulate voting-district lines for the purpose of moving black or Hispanic voters toward proportional representation.
What’s a state supposed to do? Comply with the Voting Rights Act by violating the Constitution? Comply with the Constitution by violating the Voting Rights Act?
Or try to thread the needle, by somehow divining what the Court will deem too "bizarre" a shape, and then designing districts to pass that test (barely), while coming as close as possible to creating majority-minority enclaves in numbers proportionate to the racial makeup of the relevant population?
As the law now stands, many states (and courts) are likely to choose the latter course. They will extract from the voting-rights jurisprudence of the Rehnquist Court a peculiar touchstone: Go for proportionality, but don’t be too bizarre about it.
This sorry (not to say bizarre) state of affairs is what happens when a badly splintered Court-with warring camps that seem to talk past one another rather than to seek common ground-confronts an issue that calls for statesmanlike accommodation of two conflicting imperatives.
The first imperative is that Congress has properly decreed that in places where racial bloc voting predominates, majority-black and majority-Hispanic districts must sometimes be created to protect these traditionally underrepresented groups from having their voting power negated or diluted by submergence in a sea of whites.
The second imperative is that if we are ever to get away from racial politics and bloc voting, we must resist efforts to make race the main criterion in districting. That’s because even remedial race-based districting carries the heavy costs of encouraging politicians to appeal only to members of their own race-and of putting the law’s imprimatur on the notion that people are expected to vote along racial lines.
The Court’s liberals-Justices Harry Blackmun, now departed, and John Paul Stevens-sometimes seem to see the Voting Rights Act as a mandate for wholesale proliferation of race-based electoral districts, despite the danger of thereby entrenching the very racial bloc voting that the liberals deplore, and despite the act’s explicit disclaimer of any "right to have members of a protected class elected in numbers equal to their proportion in the population."
The Court’s two most ardent conservatives-Justices Clarence Thomas and Antonin Scalia- understandably abhor the racial spoils system that they see being ushered in by liberals, but have reacted in a lawless and dishonest way:
In Holder v. Hall, handed down the same day as the De Grandy ruling, Thomas (joined by Scalia) argued with passion and cogency that by "segregating the races into political homelands," the courts are moving toward the functional equivalent of "a scheme under which members of different racial groups are divided into separate electoral registers and allocated a proportion of political power on the basis of race." But rather than seeking a stopping point consistent with the Voting Rights Act, Thomas’ 59-page concurrence flouts the utterly clear intent of Congress (not to mention 25 years of Supreme Court precedent) by disingenuously claiming that the act provides no remedy for dilution of minority voting power in racially polarized, majority-white districts. The swing justices on this issue-Sandra Day O’Connor, Anthony Kennedy, David Souter (and, perhaps, Ruth Bader Ginsburg)-seem to be groping for a moderate middle course. But so far they have not been able to agree on much. Ginsburg has not yet spelled out her views. And O’Connor and Kennedy have lurched back and forth without signaling a clear sense of where they want to go.
If Justice-nominee Stephen Breyer can import some coherence and common sense into this confusion-by steering a principled path between the Scalia-Thomas colorblind absolutism and the liberal lust for racial enclaves-he will deserve the praise his admirers have heaped upon him as a moderate-spirited consensus builder.
Breyer may have a chance of doing just that. While voting-rights law is in a mess, symbolized by O’Connor’s atrociously muddled opinion for the 5-4 majority in Shaw, both that decision and Souter’s opinion for a unanimous Court in De Grandy represent a fundamentally healthy rejection of the extreme liberal view.
Meanwhile, the extreme conservative view of Thomas and Scalia has no chance of prevailing. They could not even win over Chief Justice William Rehnquist, their usual ally. While he has never seen a race-conscious remedy he didn’t hate, Rehnquist apparently could not swallow Thomas’ transparent effort to gut the Voting Rights Act in the guise of literalist "interpretation."
The challenge for Breyer will be to help shape the Court’s muddled middle into a solid center, and to help Souter complete a project on which he made a decent start in De Grandy: guiding lower courts to use the strong medicine of race-based districting as a remedy when absolutely necessary, while taking great care to avoid an overdose.
De Grandy is remarkable (although so far largely unremarked upon) for the rare unanimity with which the Court rejected the position of the Justice Department. Solicitor General Drew Days III had argued that Florida must seek proportionate representation of all the Hispanic people scattered across the entire slate by drawing as many Hispanic-majority districts as possible in the Dade County area (where the largest concentrations of Hispanic voters live).
The Justice Department would, remarkably, have required the state to give Hispanic and black voters in ,, the Dade area more than proportional representation, while fragmenting white neighborhoods so as to submerge all non-Hispanic whites in the Dade area into black-majority and Hispanic-majority state senate districts.
The De Grandy Court was also unanimous in rejecting the holding of the special three-judge lower court that, wherever racial bloc voting exists, the Voting Rights Act mandates creation of as many majority-minority districts as possible. This noxious doctrine of "maximization" of black and Hispanic voting power at all costs had often been invoked not only by liberal civil-rights lawyers and minority politicians seeking safe seats, but also by opportunistic Republicans seeking to concentrate black voters (who tend to vote Democratic) into a relatively small number of black-majority districts.
Souter was able to get justices ranging from Rehnquist to Blackmun (as well as Stevens O’Connor, and Ginsburg) to sign his opinion because all agreed that minority voters cannot generally claim vote dilution when the districting plan creates majority-minority districts "roughly proportional to the minority voters’ respective shares in the voting-age population." Souter cautioned that in some circumstances such proportionality, by itself, would be neither necessary nor sufficient to satisfy the Voting Rights Act. But his opinion is so laden with approving references to proportionality that states and lower courts may be tempted to infer that relentlessly race-based districting up to the point of proportionality is the safest course.
This would be a mistake. As Souter’s opinion also warns, a "race-conscious calculus" tends to "promote and perpetuate efforts to devise majority-minority districts even in circumstances where they might not be necessary to achieve political and electoral opportunity." Souter also stresses, rightly, that "minority voters are not immune from the obligation to pull, haul, and trade to find a common political ground [with members of other groups], the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics."
And Shaw (in which Souter dissented) stands for the salutary principle that excessive use of race-based districting raises concerns of constitutional dimension. O’Connor’s seeming fixation in Shaw on the snake-like shape of one North Carolina congressional district is best seen as reflecting a more general constitutional presumption that states cannot make race the overriding criterion in redistricting, to the point of ignoring traditional standards like compactness, contiguity, and respect for political subdivisions.
Here’s hoping that in the next big voting-rights case, Breyer will team up with Souter and perhaps others to reconcile the constitutional holding of Shaw with the Court’s seemingly disconnected interpretations of the Voting Rights Act, and to devise a coherent blueprint for creating majority-minority districts when-and only when-they are clearly necessary to remedy very substantial vote dilution.