Bush v. Vera

No. 94-805

Argued December 5, 1995

Decided June 13, 1996 *

[U.S. Reports citation not yet available]

APPEAL FROM THE DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

Syllabus



Because the 1990 census revealed a population increase entitling Texas

to three additional congressional seats, and in an attempt to comply

with the Voting Rights Act of 1965 (VRA), the Texas Legislature

promulgated a redistricting plan that, among other things, created

District 30 as a new majority African American district in Dallas County

and District 29 as a new majority Hispanic district in Harris County,

and reconfigured District 18, which is adjacent to District 29, as a

majority African American district.  After the Department of Justice

precleared the plan under VRA  5, the plaintiffs, six Texas voters,

filed this challenge alleging that 24 of the State's 30 congressional

districts constitute racial gerrymanders in violation of the Fourteenth

Amendment.  The three-judge District Court held Districts 18, 29, and 30

unconstitutional.  The Governor of Texas, private intervenors, and the

United States (as intervenor) appeal.



Held:  The judgment is affirmed.



861 F.Supp. 1304, affirmed.



JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY,

concluded:



1. Plaintiff Chen, who resides in District 25 and has not alleged any

specific facts showing that he personally has been subjected to any

racial classification, lacks standing under United States v. Hays, 515

U.S. ___, ___.  But plaintiffs Blum and Powers, who reside in District

18, plaintiffs Thomas and Vera, who reside in District 29, and plaintiff

Orcutt, who resides in District 30, have standing to challenge Districts

18, 29, and 30.  See, e.g., id. at ___.  Pp. ___.



2. Districts 18, 29, and 30 are subject to strict scrutiny under this

Court's precedents.  Pp. 3-22.



(a) Strict scrutiny applies where race was "the predominant factor"

motivating the drawing of district lines, see, e.g., Miller v. Johnson,

515 U.S. ___, ___ (emphasis added), and traditional, race-neutral

districting principles were subordinated to race, see id. at ___.  This

is a mixed motive case, and a careful review is therefore necessary to

determine whether the districts at issue are subject to such scrutiny. 

Findings that Texas substantially neglected traditional districting

criteria such as compactness, that it was committed from the outset to

creating majority minority districts, and that it manipulated district

lines to exploit unprecedentedly detailed racial data, taken together,

weigh in favor of the application of strict scrutiny.  However, because

factors other than race, particularly incumbency protection, clearly

influenced the legislature, each of the challenged districts must be

scrutinized to determine whether the District Court's conclusion that

race predominated can be sustained.  Pp. ___.



(b) District 30 is subject to strict scrutiny.  Appellants do not deny

that the district shows substantial disregard for the traditional

districting principles of compactness and regularity, or that the

redistricters pursued unwaveringly the objective of creating a majority

African American district.  Their argument that the district's bizarre

shape is explained by efforts to unite communities of interest, as

manifested by the district's consistently urban character and its shared

media sources and major transportation lines to Dallas, must be

rejected.  The record contains no basis for displacing the District

Court's conclusion that race predominated over the latter factors,

particularly in light of the court's findings that the State's

supporting data were largely unavailable to the legislature before the

district was created and that the factors do not differentiate the

district from surrounding areas with the same degree of correlation to

district lines that racial data exhibit.  Appellants' more substantial

claim that incumbency protection rivaled race in determining the

district's shape is also unavailing.  The evidence amply supports the

District Court's conclusions that racially motivated gerrymandering had

a qualitatively greater influence on the drawing of district lines than

politically motivated gerrymandering, which is not subject to strict

scrutiny, see Davis v. Bandemer, 478 U.S. 109, 132 (White, J., plurality

opinion); and that political gerrymandering was accomplished in large

part by the use of race as a proxy for political characteristics, which

is subject to such scrutiny, cf. Powers v. Ohio, 499 U.S. 400, 410.  Pp.

___.



(c) Interlocking Districts 18 and 29 are also subject to strict

scrutiny.  Those districts' shapes are bizarre, and their utter

disregard of city limits, local election precincts, and voter tabulation

district lines has caused a severe disruption of traditional forms of

political activity and created administrative headaches for local

election officials.  Although appellants adduced evidence that

incumbency protection played a role in determining the bizarre district

lines, the District Court's conclusion that the districts' shapes are

unexplainable on grounds other than race and, as such, are the product

of presumptively unconstitutional racial gerrymandering is inescapably

corroborated by the evidence.  Pp. ___.



3.  Districts 18, 29, and 30 are not narrowly tailored to serve a

compelling state interest.  Pp. ___.



(a) Creation of the three districts was not justified by a compelling

state interest in complying with the "results" test of VRA  2(b).  It

may be assumed without deciding that such compliance can be a compelling

state interest.  See, e.g., Shaw v. Hunt, ante at ___ (Shaw II).  States

attempting to comply with  2 retain discretion to apply traditional

districting principles and are entitled to a limited degree of leeway. 

But a district drawn in order to satisfy  2 must not subordinate

traditional districting principles to race substantially more than is

reasonably necessary.  The districts at issue fail this test, since all

three are bizarrely shaped and far from compact, and those

characteristics are predominantly attributable to gerrymandering that

was racially motivated and/or achieved by the use of race as a proxy. 

Appellants Lawson et al. misinterpret Miller, 515 U.S. at ___, when they

argue that bizarre shaping and noncompactness go only to motive and are

irrelevant to the narrow tailoring inquiry.  Also unavailing is the

United States' contention that insofar as bizarreness and noncompactness

are necessary to achieve the State's compelling interest in compliance

with  2 while simultaneously achieving other legitimate redistricting

goals, the narrow tailoring requirement is satisfied.  The bizarre

shaping and noncompactness of the districts in question were

predominantly attributable to racial, not political, manipulation, while

the Government's argument addresses the case of an otherwise compact

majority minority district that is misshapen by predominantly nonracial

political manipulation.  Pp. ___.



(b) The district lines at issue are not justified by a compelling state

interest in ameliorating the effects of racially polarized voting

attributable to Texas' long history of discrimination against minorities

in electoral processes.  Among the conditions that must be satisfied to

render an interest in remedying discrimination compelling is the

requirement that the discrimination be specific and "identified."  Shaw

II, ante at ___.  Here, the only current problem that appellants cite as

in need of remediation is alleged vote dilution as a consequence of

racial bloc voting, the same concern that underlies their VRA  2

compliance defense.  Once the correct standard is applied, the fact that

these districts are not narrowly tailored to comply with  2 forecloses

this line of defense.  Pp. ___.



(c) Creation of District 18 (only) was not justified by a compelling

state interest in complying with VRA  5, which seeks to prevent voting

procedure changes leading to a retrogression in the position of racial

minorities with respect to their effective exercise of the electoral

franchise.  See, e.g., Miller, supra, at ___.   The problem with

appellants' contention that this "nonretrogression" principle applies

because Harris County previously contained a congressional district in

which African American voters always succeeded in selecting African

American representatives is that it seeks to justify not maintenance,

but substantial augmentation, of the African American population

percentage, which has grown from 40.8% in the previous district to 50.9%

in District 18.  Nonretrogression is not a license for the State to do

whatever it deems necessary to insure continued electoral success; it

merely mandates that the minority's opportunity to elect representatives

of its choice not be diminished, directly or indirectly, by the State's

actions.  District 18 is not narrowly tailored to the avoidance of  5

liability.  See Shaw v. Reno, 509 U.S. 630, 655.  Pp. ___.



4.  Various of the dissents' arguments, none of which address the

specifics of this case, and which have been rebutted in other decisions,

must be rejected.  Pp. ___.



JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that application of

strict scrutiny in this case was never a close question, since this

Court's decisions have effectively resolved that the intentional

creation of majority minority districts, by itself, is sufficient to

invoke such scrutiny.  See, e.g., Adarand Constructors, Inc. v. Pena,

515 U.S. ___, ___ (strict scrutiny applies to all government

classifications based on race); Miller v. Johnson, 515 U.S. ___ , ___

(Georgia's concession that it intentionally created majority minority

districts was sufficient to show that race was a predominant, motivating

factor in its redistricting).  DeWitt v. Wilson, 515 U.S. ___,

distinguished.  Application of strict scrutiny is required here because

Texas has readily admitted that it intentionally created majority

minority districts and that those districts would not have existed but

for its affirmative use of racial demographics.  Assuming that the State

has asserted a compelling state interest, its redistricting attempts

were not narrowly tailored to achieve that interest.  Pp. ___.



O'CONNOR, J., announced the judgment of the Court and delivered an

opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined.  O'CONNOR,

J., also filed a separate concurring opinion.  KENNEDY, J., filed a

concurring opinion.  THOMAS, J., filed an opinion concurring in the

judgment, in which SCALIA, J., joined.  STEVENS, J., filed a dissenting

opinion, in which GINSBURG and BREYER, JJ., joined.  SOUTER, J., filed a

dissenting opinion, in which GINSBURG and BREYER, JJ., joined. O'CONNOR,

J., lead opinion



JUSTICE O'CONNOR announced the judgment of the Court and delivered an

opinion, in which THE CHIEF JUSTICE and JUSTICE KENNEDY join.



This is the latest in a series of appeals involving racial

gerrymandering challenges to state redistricting efforts in the wake of

the 1990 census.  See Shaw v. Hunt, ante, p. ___ (Shaw II); United

States v. Hays, 515 U.S. ___ (1995); Miller v. Johnson, 515 U.S. ___

(1995); Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I).  That census

revealed a population increase, largely in urban minority populations,

that entitled Texas to three additional congressional seats.  In

response, and with a view to complying with the Voting Rights Act of

1965 (VRA), 79 Stat. 437, as amended, 42 U.S.C.  1973 et seq., the Texas

Legislature promulgated a redistricting plan that, among other things: 

created District 30, a new majority African American district in Dallas

County; created District 29, a new majority Hispanic district in and

around Houston in Harris County; and reconfigured District 18, which is

adjacent to District 29, to make it a majority African American

district.  The Department of Justice precleared that plan under VRA  5

in 1991, and it was used in the 1992 congressional elections.



The plaintiffs, six Texas voters, challenged the plan, alleging that 24

of Texas' 30 congressional districts constitute racial gerrymanders in

violation of the Fourteenth Amendment.  The three-judge United States

District Court for the Southern District of Texas held Districts 18, 29,

and 30 unconstitutional.  Vera v. Richards, 861 F.Supp. 1304 (1994). 

The Governor of Texas, private intervenors, and the United States (as

intervenor) now appeal.  Finding that, under this Court's decisions in

Shaw I and Miller, the district lines at issue are subject to strict

scrutiny, and that they are not narrowly tailored to serve a compelling

state interest, we affirm. I



As a preliminary matter, the State and private appellants contest the

plaintiffs' standing to challenge these districts.  Plaintiff Chen

resides in Texas congressional District 25, and has not alleged any

specific facts showing that he personally has been subjected to any

racial classification.  Under our decision in Hays, he lacks standing. 

See Hays, supra, at ___.  But plaintiffs Blum and Powers are residents

of District 18, plaintiffs Thomas and Vera are residents of District 29,

and plaintiff Orcutt is a resident of District 30.  We stated in Hays

that, [w]here a plaintiff resides in a racially gerrymandered district,

. . . the plaintiff has been denied equal treatment because of the

legislature's reliance on racial criteria, and therefore has standing to

challenge the legislature's action. Hays, supra, at ___; accord, Miller,

supra, at ___.  Under this rule, these plaintiffs have standing to

challenge Districts 18, 29, and 30. II



We must now determine whether those districts are subject to strict

scrutiny.  Our precedents have used a variety of formulations to

describe the threshold for the application of strict scrutiny.  Strict

scrutiny applies where redistricting legislation . . . is so extremely

irregular on its face that it rationally can be viewed only as an effort

to segregate the races for purposes of voting, without regard for

traditional districting principles, Shaw I, 509 U.S. at 642, or where

"race for its own sake, and not other districting principles, was the

legislature's dominant and controlling rationale in drawing its district

lines," Miller, 515 U.S. at ___, and "the legislature subordinated

traditional race-neutral districting principles . . . to racial

considerations," id. at ___.  See also id. at ___ (O'CONNOR, J.,

concurring) (strict scrutiny only applies where "the State has relied on

race in substantial disregard of customary and traditional districting

practices").



Strict scrutiny does not apply merely because redistricting is performed

with consciousness of race.  See Shaw I, supra, at 646.  Nor does it

apply to all cases of intentional creation of majority minority

districts.  See DeWitt v. Wilson, 856 F.Supp. 1409 (ED Cal. 1994)

(strict scrutiny did not apply to an intentionally created compact

majority minority district), summarily aff'd, 515 U.S. ___ (1995); cf.

Shaw I, 509 U.S. at 649 (reserving this question).  Electoral district

lines are "facially race neutral," so a more searching inquiry is

necessary before strict scrutiny can be found applicable in

redistricting cases than in cases of "classifications based explicitly

on race."  See Adarand Constructors, Inc. v. Pena, 515 U.S. ___, ___

(1995); compare post at ___ (THOMAS, J.,, concurring in judgment)

(assimilating our redistricting cases to Adarand).  For strict scrutiny

to apply, the plaintiffs must prove that other, legitimate districting

principles were "subordinated" to race.  Miller, 515 U.S. at ___.  By

that, we mean that race must be "the predominant factor motivating the

legislature's [redistricting] decision."  Ibid. (emphasis added).  We

thus differ from JUSTICE THOMAS, who would apparently hold that it

suffices that racial considerations be a motivation for the drawing of a

majority minority district.  See post at ___.



The present case is a mixed motive case.  The appellants concede that

one of Texas' goals in creating the three districts at issue was to

produce majority minority districts, but they also cite evidence that

other goals, particularly incumbency protection (including protection of

"functional incumbents," i.e., sitting members of the Texas Legislature

who had declared an intention to run for open congressional seats), also

played a role in the drawing of the district lines.  The record does not

reflect a history of "purely race-based" districting revisions.  Cf.

Miller, supra, at ___ (emphasis added).  A careful review is, therefore,

necessary to determine whether these districts are subject to strict

scrutiny.  But review of the District Court's findings of primary fact

and the record convinces us that the District Court's determination that

race was the "predominant factor" in the drawing of each of the

districts must be sustained.



We begin with general findings and evidence regarding the redistricting

plan's respect for traditional districting principles, the legislators'

expressed motivations, and the methods used in the redistricting

process.  The District Court began its analysis by rejecting the factual

basis for appellants' claim that Texas' challenged "districts cannot be

unconstitutionally bizarre in shape because Texas does not have and

never has used traditional redistricting principles such as natural

geographical boundaries, contiguity, compactness, and conformity to

political subdivisions."  861 F.Supp. at 1333.  The court instead found

that "generally, Texas has not intentionally disregarded traditional

districting criteria," and that only one pre-1991 congressional district

in Texas was comparable in its irregularity and noncompactness to the

three challenged districts.  Id. at 1334.  The court also noted that

"compactness as measured by an `eyeball' approach was much less

important," id. at 1313, n. 9, in the 1991 plan, App. 144, than in its

predecessor, the 1980 Texas congressional districting plan, id. at 138,

and that districts were especially irregular in shape in the Dallas and

Harris County areas where the challenged districts are located, see 861

F.Supp. at 1313, n. 9.



These findings comport with the conclusions of an instructive study that

attempted to determine the relative compactness of districts nationwide

in objective, numerical terms.  That study gave Texas' 1980 districting

plan a roughly average score for the compactness and regularity of its

district shapes, but ranked its 1991 plan among the worst in the Nation.

 See Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting

Rights:  Evaluating Election District Appearances After Shaw v. Reno, 92

Mich.L.Rev. 483, 571-573, table 6 (1993).  The same study ranked

Districts 18, 29, and 30 among the 28 least regular congressional

districts nationwide.  See id. at 565, table 3.  Our own review gives us

no reason to disagree with the District Court that the districts at

issue "have no integrity in terms of traditional, neutral redistricting

criteria," 861 F.Supp. at 1339.



The District Court also found substantial direct evidence of the

legislature's racial motivations.  The State's submission to the

Department of Justice for preclearance under VRA  5 reports a consensus

within the legislature that the three new congressional districts

"should be configured in such a way as to allow members of racial,

ethnic, and language minorities to elect Congressional representatives. 

Accordingly, the three new districts include a predominantly black

district drawn in the Dallas County area [district 30] and predominantly

Hispanic districts in the Harris County area [district 29] and in the

South Texas region.  In addition to creating the three new minority

districts, the proposed Congressional redistricting plan increases the

black voting strength of the current District 18 (Harris County) by

increasing the population to assure that the black community may

continue to elect a candidate of its choice." Id. at 1315 (quoting

Narrative of Voting Rights Act Considerations in Affected Districts,

reprinted in App. 104-105).  The appellants also conceded in this

litigation that the three districts at issue "were created for the

purpose of enhancing the opportunity of minority voters to elect

minority representatives to Congress."  861 F.Supp. at 1337.  And

testimony of individual state officials confirmed that the decision to

create the districts now challenged as majority minority districts was

made at the outset of the process and never seriously questioned.



The means that Texas used to make its redistricting decisions provides

further evidence of the importance of race.  The primary tool used in

drawing district lines was a computer program called "REDAPPL."  REDAPPL

permitted redistricters to manipulate district lines on computer maps,

on which racial and other socioeconomic data were superimposed.  At each

change in configuration of the district lines being drafted, REDAPPL

displayed updated racial composition statistics for the district as

drawn.  REDAPPL contained racial data at the block-by-block level,

whereas other data, such as party registration and past voting

statistics, were only available at the level of voter tabulation

districts (which approximate election precincts).  The availability and

use of block-by-block racial data was unprecedented; before the 1990

census, data were not broken down beyond the census tract level.  See

App. 123.  By providing uniquely detailed racial data, REDAPPL enabled

districters to make more intricate refinements on the basis of race than

on the basis of other demographic information.  The District Court found

that the districters availed themselves fully of that opportunity: In

numerous instances, the correlation between race and district boundaries

is nearly perfect. . . .  The borders of Districts 18, 29, and 30 change

from block to block, from one side of the street to the other, and

traverse streets, bodies of water, and commercially developed areas in

seemingly arbitrary fashion until one realizes that those corridors

connect minority populations. 861 F.Supp. at 1336.



These findings -- that the State substantially neglected traditional

districting criteria such as compactness, that it was committed from the

outset to creating majority minority districts, and that it manipulated

district lines to exploit unprecedentedly detailed racial data --

together weigh in favor of the application of strict scrutiny.  We do

not hold that any one of these factors is independently sufficient to

require strict scrutiny.  The Constitution does not mandate regularity

of district shape, see Shaw I, 509 U.S. at 647, and the neglect of

traditional districting criteria is merely necessary, not sufficient. 

For strict scrutiny to apply, traditional districting criteria must be

subordinated to race.  Miller, 515 U.S. at ___.  Nor, as we have

emphasized, is the decision to create a majority minority district

objectionable in and of itself.  The direct evidence of that decision is

not, as JUSTICE STEVENS suggests, post at ___, "the real key" to our

decision; it is merely one of several essential ingredients.  Nor do we

"condemn state legislation merely because it was based on accurate

information."  Post at ___, n. 27.  The use of sophisticated technology

and detailed information in the drawing of majority minority districts

is no more objectionable than it is in the drawing of majority majority

districts.  But, as the District Court explained, the direct evidence of

racial considerations, coupled with the fact that the computer program

used was significantly more sophisticated with respect to race than with

respect to other demographic data, provides substantial evidence that it

was race that led to the neglect of traditional districting criteria

here.  We must therefore consider what role other factors played in

order to determine whether race predominated.



Several factors other than race were at work in the drawing of the

districts.  Traditional districting criteria were not entirely

neglected:  Districts 18 and 29 maintain the integrity of county lines;

each of the three districts takes its character from a principal city

and the surrounding urban area; and none of the districts is as widely

dispersed as the North Carolina district held unconstitutional in Shaw

II, ante, p. ___.  (These characteristics are, however, unremarkable in

the context of large, densely populated urban counties.)  More

significantly, the District Court found that incumbency protection

influenced the redistricting plan to an unprecedented extent: [A]s

enacted in Texas in 1991, many incumbent protection boundaries sabotaged

traditional redistricting principles as they routinely divided counties,

cities, neighborhoods, and regions.  For the sake of maintaining or

winning seats in the House of Representatives, Congressmen or would-be

Congressmen shed hostile groups and potential opponents by fencing them

out of their districts.  The Legislature obligingly carved out districts

of apparent supporters of incumbents, as suggested by the incumbents,

and then added appendages to connect their residences to those

districts.  The final result seems not one in which the people select

their representatives, but in which the representatives have selected

the people. 861 F.Supp. at 1334 (citations and footnotes omitted).  See

also id. at 1317-1318 (describing specific evidence of incumbency

protection efforts statewide).  This finding receives inferential

support from the fact that all but one of Texas' 27 incumbents won in

the 1992 elections.  See id. at 1318.  And the appellants point to

evidence that in many cases, race correlates strongly with

manifestations of community of interest (for example, shared broadcast

and print media, public transport infrastructure, and institutions such

as schools and churches) and with the political data that is vital to

incumbency protection efforts, raising the possibility that correlations

between racial demographics and district lines may be explicable in

terms of nonracial motivations.  For example, a finding by a district

court that district lines were drawn in part on the basis of evidence

(other than racial data) of where communities of interest existed might

weaken a plaintiff's claim that race predominated in the drawing of

district lines.  Cf. post at ___ (SOUTER, J., dissenting) (recognizing

the legitimate role of communities of interest in our system of

representative democracy).



Strict scrutiny would not be appropriate if race-neutral, traditional

districting considerations predominated over racial ones.  We have not

subjected political gerrymandering to strict scrutiny.  See Davis v.

Bandemer, 478 U.S. 109, 132 (1986) (White, J., plurality opinion)

("[U]nconstitutional discrimination occurs only when the electoral

system is arranged in a manner that will consistently degrade a voter's

or a group of voters' influence on the political process as a whole");

id. at 147 (O'CONNOR, J., concurring in judgment) ("[P]urely political

gerrymandering claims" are not justiciable).  And we have recognized

incumbency protection at least in the limited form of "avoiding contests

between incumbent[s]," as a legitimate state goal.  See Karcher v.

Daggett, 462 U.S. 725, 740 (1983); White v. Weiser, 412 U.S. 783, 797

(1973); Burns v. Richardson, 384 U.S. 73, 89, n. 16 (1966); cf. Gaffney

v. Cummings, 412 U.S. 735,  and 752, n. 18 (1973) (State may draw

irregular district lines in order to allocate seats proportionately to

major political parties).  Because it is clear that race was not the

only factor that motivated the legislature to draw irregular district

lines, we must scrutinize each challenged district to determine whether

the District Court's conclusion that race predominated over legitimate

districting considerations, including incumbency, can be sustained. A



The population of District 30 is 50% African American and 17.1%

Hispanic.  Fifty percent of the district's population is located in a

compact, albeit irregularly shaped, core in south Dallas, which is 69%

African American.  But the remainder of the district consists of narrow

and bizarrely shaped tentacles -- the State identifies seven "segments"

-- extending primarily to the north and west.  See App. 335; see also M.

Barone & G. Ujifusa, Almanac of American Politics 1996, p. 1277 (1995)

(describing the district).  Over 98% of the district's population is

within Dallas County, see App. 118, but it crosses two county lines at

its western and northern extremities.  Its western excursion into

Tarrant County grabs a small community that is 61.9% African American,

id. at 331; its northern excursion into Collin County occupies a

hook-like shape mapping exactly onto the only area in the southern half

of that county with a combined African American and Hispanic percentage

population in excess of 50%, id. at 153.  The District Court's

description of the district as a whole bears repeating: The district

sprawls throughout Dallas County, deliberately excludes the wealthy

white neighborhoods of Highland Park and University Park, and extends

fingers into Collin County, which include the outermost suburbs of

Dallas.  In Collin County, the district picks up a small African

American neighborhood.  The district extends into Tarrant County only to

pick up a small border area with a high African American concentration. 

It also reaches out to claim Hamilton Park, an affluent African American

neighborhood surrounded by whites.  Part of the district runs along

Trinity River bottom, using it to connect dispersed minority population.

 Numerous [voter tabulation districts] were split in order to achieve

the population mix required for the district. . . . It is at least 25

miles wide and 30 miles long. 861 F.Supp. at 1337-1338; see also

Appendix A to this opinion (outline of District 30) [omitted -- see

printed edition].



Appellants do not deny that District 30 shows substantial disregard for

the traditional districting principles of compactness and regularity, or

that the redistricters pursued unwaveringly the objective of creating a

majority African American district.  But they argue that its bizarre

shape is explained by efforts to unite communities of interest in a

single district and, especially, to protect incumbents.



Appellants highlight the facts that the district has a consistently

urban character and has common media sources throughout, and that its

tentacles include several major transportation lines into the city of

Dallas.  These factors, which implicate traditional districting

principles, do correlate to some extent with the district's layout.  But

we see no basis in the record for displacing the District Court's

conclusion that race predominated over them, particularly in light of

the court's findings that the State's supporting data were not

"available to the Legislature in any organized fashion before District

30 was created," 861 F.Supp. at 1338, and that they do not

"differentiate the district from surrounding areas," ibid. with the same

degree of correlation to district lines that racial data exhibit, see

App. 150.  In reaching that conclusion, we do not, as JUSTICE STEVENS

fears, require States engaged in redistricting to compile "a

comprehensive administrative record," post at ___ (STEVENS, J.,

dissenting), and we do not dismiss facts not explicitly mentioned in the

redistricting plan's legislative history as "irrelevant," id. at ___. 

If, as may commonly happen, traditional districting principles are

substantially followed without much conscious thought, they cannot be

said to have been "subordinated to race."  In considering whether race

was the "predominant factor motivating the legislatur[e]," it is,

however, evidentially significant that at the time of the redistricting,

the State had compiled detailed racial data for use in redistricting,

but made no apparent attempt to compile, and did not refer specifically

to, equivalent data regarding communities of interest.



Appellants present a more substantial case for their claim that

incumbency protection rivaled race in determining the district's shape. 

Representative Johnson was the principal architect of District 30, which

was designed in part to create a safe Democratic seat for her.  At an

early stage in the redistricting process, Johnson submitted to the state

legislature a plan for Dallas County with a relatively compact 44%

African American district that did not violate the integrity of any

voter tabulation district or county lines.  See App. 139; 861 F.Supp. at

1338.  The District Court found that "[w]hile minority voters did not

object" to it, id. at 1330, "[t]hat plan drew much opposition from

incumbents and was quickly abandoned."  Id. at 1321, n. 22.  "[F]ive

other congressmen would have been thrown into districts other than the

ones they currently represent."  Id. at 1330-1331.  Appellants also

point to testimony from Johnson and others to the effect that the

incumbents of the adjacent Democratic Districts 5 and 24 exerted strong

and partly successful efforts to retain predominantly African American

Democratic voters in their districts.  (There was evidence that 97% of

African American voters in and around the city of Dallas vote Democrat.)

 See generally id. at 1321-1322.



In some circumstances, incumbency protection might explain as well as,

or better than, race a State's decision to depart from other traditional

districting principles, such as compactness, in the drawing of bizarre

district lines.  And the fact that, "[a]s it happens, . . . many of the

voters being fought over [by the neighboring Democratic incumbents] were

African American," id. at 1338, would not, in and of itself, convert a

political gerrymander into a racial gerrymander, no matter how conscious

redistricters were of the correlation between race and party

affiliation.  See Shaw I, 509 U.S. at 646.  If district lines merely

correlate with race because they are drawn on the basis of political

affiliation, which correlates with race, there is no racial

classification to justify, just as racial disproportions in the level of

prosecutions for a particular crime may be unobjectionable if they

merely reflect racial disproportions in the commission of that crime,

cf. post at ___, n. 30 (STEVENS, J., dissenting) (discussing United

States v. Armstrong, 517 U.S. ___, ___ (1996)).



If the State's goal is otherwise constitutional political

gerrymandering, it is free to use the kind of political data on which

JUSTICE STEVENS focuses -- precinct general election voting patterns,

post at ___, precinct primary voting patterns, post at ___, and

legislators' experience, post at ___ -- to achieve that goal regardless

of its awareness of its racial implications and regardless of the fact

that it does so in the context of a majority minority district.  To the

extent that the District Court suggested the contrary, it erred.  But to

the extent that race is used as a proxy for political characteristics, a

racial stereotype requiring strict scrutiny is in operation.  Cf. Powers

v. Ohio, 499 U.S. 400, 410 (1991) ("Race cannot be a proxy for

determining juror bias or competence").  We cannot agree with the

dissenters, see post at ___ (STEVENS, J., dissenting); post at ___, n. 5

(SOUTER, J., dissenting); see also Shaw II, ante at ___, n. 4 (STEVENS,

J., dissenting), that racial stereotyping that we have scrutinized

closely in the context of jury service can pass without justification in

the context of voting.  If the promise of the Reconstruction Amendments,

that our Nation is to be free of state-sponsored discrimination, is to

be upheld, we cannot pick and choose between the basic forms of

political participation in our efforts to eliminate unjustified racial

stereotyping by government actors.



Here, the District Court had ample bases on which to conclude both that

racially motivated gerrymandering had a qualitatively greater influence

on the drawing of district lines than politically motivated

gerrymandering, and that political gerrymandering was accomplished in

large part by the use of race as a proxy.  The State's own VRA  5

submission explains the drawing of District 30, and the rejection of

Johnson's more compact plan, in exclusively racial terms: Throughout the

course of the Congressional redistricting process, the lines of the

proposed District 30 were constantly reconfigured in an attempt to

maximize the voting strength for this black community in Dallas County.

. . .  While the legislature was in agreement that a safe black district

should be drawn in the Dallas County area, the real dispute involved the

composition, configuration and quality of that district.  The community

insisted that [a] "safe" black district be drawn that had a total black

population of at least 50%. . . . Although some [alternative] proposals

showed a more compact configuration, none of them reached the threshold

50% total black population which the community felt was necessary to

assure its ability to elect its own Congressional representative without

having to form coalitions with other minority groups. *    *    *    *

The goal was to not only create a district that would maximize the

opportunity for the black community to elect a Congressional candidate

of its choice in 1992, but also one that included some of the major

black growth areas which will assure continued electoral and economic

opportunities over the next decades. App. 106-107.   As the District

Court noted, testimony of state officials in earlier litigation (in

which District 30 was challenged as a political gerrymander)

contradicted part of their testimony here, and affirmed that "race was

the primary consideration in the construction of District 30."  861

F.Supp. at 1338; see also id. at 1319-1321.  And Johnson explained in a

letter to the Department of Justice written at the end of the

redistricting process that incumbency protection had been achieved by

using race as a proxy: "Throughout the course of the Congressional

redistricting process, the lines were continuously reconfigured to

assist in protecting the Democratic incumbents in the Dallas/Fort Worth

metroplex area by spreading the Black population to increase the

Democratic party index in those areas." 861 F.Supp. at 1322 (quoting

Plaintiff Exh. 6E6).  This is not to say that the direct evidence of the

districters' intent showed race to be the sole factor considered.  As

JUSTICE STEVENS notes, post at ___, nn. ___, State officials' claims

have changed as their interests have changed.  In the prior political

gerrymandering suit and to the Department of Justice, they asserted that

race predominated.  In this suit, their testimony was that political

considerations predominated. These inconsistent statements must be

viewed in light of their adversarial context.  But such questions of

credibility are matters for the District Court, and we simply differ

from the dissenters in our reading of the record when they find

insupportable the District Court's reliance on the State's own

statements indicating the importance of race, see post at ___, nn. ___,

34, n. 31 (STEVENS, J., dissenting).



Finally, and most significantly, the objective evidence provided by the

district plans and demographic maps suggests strongly the predominance

of race.  Given that the districting software used by the State provided

only racial data at the block-by-block level, the fact that District 30,

unlike Johnson's original proposal, splits voter tabulation districts

and even individual streets in many places, see App. 150; 861 F.Supp. at

1339, suggests that racial criteria predominated over other districting

criteria in determining the district's boundaries.  And, despite the

strong correlation between race and political affiliation, the maps

reveal that political considerations were subordinated to racial

classification in the drawing of many of the most extreme and bizarre

district lines.  For example, the northernmost hook of the district,

where it ventures into Collin County, is tailored perfectly to maximize

minority population, see App. 153 (all whole and parts of 1992 voter

tabulation districts within District 30's Collin County hook have a

combined African American and Hispanic population in excess of 50%, with

an average African American population of 19.8%, id. at 331, while the

combined African American and Hispanic population in all surrounding

voter tabulation districts, and the other parts of split districts, in

Collin County is less than 25%), whereas it is far from the shape that

would be necessary to maximize the Democratic vote in that area, see id.

at 196 (showing a Republican majority, based on 1990 voting patterns in

seven of the eight 1990 voter tabulation districts wholly or partly

included in District 30 in Collin County).*



The combination of these factors compels us to agree with the District

Court that "the contours of Congressional District 30 are unexplainable

in terms other than race."  861 F.Supp. at 1339.  It is true that

District 30 does not evince a consistent, single-minded effort to

"segregate" voters on the basis of race, post at ___ (STEVENS, J.,

dissenting), and does not represent "apartheid," post at ___ (SOUTER,

J., dissenting).  But the fact that racial data were used in complex

ways, and for multiple objectives, does not mean that race did not

predominate over other considerations.  The record discloses intensive

and pervasive use of race both as a proxy to protect the political

fortunes of adjacent incumbents, and for its own sake in maximizing the

minority population of District 30 regardless of traditional districting

principles.  District 30's combination of a bizarre, noncompact shape

and overwhelming evidence that that shape was essentially dictated by

racial considerations of one form or another is exceptional; Texas

Congressional District 6, for example, which JUSTICE STEVENS discusses

in detail, post at ___, has only the former characteristic.  That

combination of characteristics leads us to conclude that District 30 is

subject to strict scrutiny. B



In Harris County, centered on the city of Houston, Districts 18 and 29

interlock "like a jigsaw puzzle . . . in which it might be impossible to

get the pieces apart."  Barone & Ujifusa, The Almanac of American

Politics 1996 at 1307-1308; see also Appendices B and C to this opinion

(outlines of Districts 18, 29) [omitted -- see printed edition].  As the

District Court noted, "these districts are so finely `crafted' that one

cannot visualize their exact boundaries without looking at a map at

least three feet square."  861 F.Supp. at 1323.  According to the

leading statistical study of relative district compactness and

regularity, they are two of the three least regular districts in the

country.  See Pildes & Niemi, 92 Mich.L.Rev. at 565.



District 18's population is 51% African American and 15% Hispanic.  App.

110.  It has some of the most irregular boundaries of any congressional

district in the country[,] . . . boundaries that squiggle north toward

Intercontinental Airport and northwest out radial highways, then spurt

south on one side toward the port and on the other toward the Astrodome.

Barone & Ujifusa, supra, at 1307.  Its "many narrow corridors, wings, or

fingers . . . reach out to enclose black voters, while excluding nearby

Hispanic residents."  Pildes & Niemi, supra, at 556.



District 29 has a 61% Hispanic and 10% African American population. 

App. 110.  It resembles a sacred Mayan bird, with its body running

eastward along the Ship Channel from downtown Houston until the tail

terminates in Baytown.  Spindly legs reach south to Hobby Airport, while

the plumed head rises northward almost to Intercontinental.  In the

western extremity of the district, an open beak appears to be searching

for worms in Spring Branch.  Here and there, ruffled feathers jut out at

odd angles. Barone & Ujifusa, supra, at 1335.  Not only are the shapes

of the districts bizarre; they also exhibit utter disregard of city

limits, local election precincts, and voter tabulation district lines. 

See, e.g., 861 F.Supp. at 1340 (60% of District 18 and District 29

residents live in split precincts).  This caused a severe disruption of

traditional forms of political activity.  Campaigners seeking to visit

their constituents "had to carry a map to identify the district lines,

because so often the borders would move from block to block"; voters

"did not know the candidates running for office" because they did not

know which district they lived in.  Ibid.  In light of Texas'

requirement that voting be arranged by precinct, with each precinct

representing a community which shares local, state, and federal

representatives, it also created administrative headaches for local

election officials: The effect of splitting dozens of [voter tabulation

districts] to create Districts 18 and 29 was an electoral nightmare. 

Harris County estimated that it must increase its number of precincts

from 672 to 1,225 to accommodate the new Congressional boundaries. 

Polling places, ballot forms, and the number of election employees are

correspondingly multiplied.  Voters were thrust into new and unfamiliar

precinct alignments, a few with populations as low as 20 voters. Id. at

1325.  See also App. 119-127 (letter from local official setting forth

administrative problems and conflict with local districting traditions);

id. at 147 (map showing splitting of city limits); id. at 128,

Plaintiffs' Exh. 6E1, Attachment A (map illustrating splitting of voting

precincts).



As with District 30, appellants adduced evidence that incumbency

protection played a role in determining the bizarre district lines.  The

District Court found that one constraint on the shape of District 29 was

the rival ambitions of its two "functional incumbents," who distorted

its boundaries in an effort to include larger areas of their existing

state legislative constituencies.  861 F.Supp. at 1340.  But the

District Court's findings amply demonstrate that such influences were

overwhelmed in the determination of the districts' bizarre shapes by the

State's efforts to maximize racial divisions.  The State's VRA  5

submission explains that the bizarre configuration of Districts 18 and

29 "result[s] in the maximization of minority voting strength" in Harris

County, App. 110, corroborating the District Court's finding that, [i]n

the earliest stages of the Congressional redistricting process, state

Democratic and Republican leaders rallied behind the idea of creating a

new Hispanic safe seat in Harris County while preserving the safe

African American seat in District 18. 861 F.Supp. at 1324.  State

officials testified that "it was particularly necessary to split [voter

tabulation districts] in order to capture pockets of Hispanic residents"

for District 29, and that a 61% Hispanic population in that district --

not a mere majority was insisted upon.  Id. at 1340-1341.  The record

evidence of the racial demographics and voting patterns of Harris County

residents belies any suggestion that party politics could explain the

dividing lines between the two districts:  the district lines correlate

almost perfectly with race, see App. 151-152, while both districts are

similarly solidly Democratic, see id. at 194.  And, even more than in

District 30, the intricacy of the lines drawn, separating Hispanic

voters from African American voters on a block-by-block basis, betrays

the critical impact of the block-by-block racial data available on the

REDAPPL program.  The District Court's conclusion is, therefore,

inescapable: Because Districts 18 and 29 are formed in utter disregard

for traditional redistricting criteria and because their shapes are

ultimately unexplainable on grounds other than the racial quotas

established for those districts, they are the product of [presumptively]

unconstitutional racial gerrymandering. 861 F.Supp. at 1341. III



Having concluded that strict scrutiny applies, we must determine whether

the racial classifications embodied in any of the three districts are

narrowly tailored to further a compelling state interest.  Appellants

point to three compelling interests:  the interest in avoiding liability

under the "results" test of VRA  2(b), the interest in remedying past

and present racial discrimination, and the "nonretrogression" principle

of VRA  5 (for District 18 only).  We consider them in turn. A



Section 2(a) of the VRA prohibits the imposition of any electoral

practice or procedure that "results in a denial or abridgement of the

right of any citizen . . . to vote on account of race or color."  In

1982, Congress amended the VRA by changing the language of  2(a) and

adding  2(b), which provides a "results" test for violation of  2(a).  A

violation exists if, based on the totality of circumstances, it is shown

that the political processes leading to nomination or election in the

State or political subdivision are not equally open to participation by

members of a class of citizens protected by subsection (a) of this

section in that its members have less opportunity than other members of

the electorate to participate in the political process and to elect

representatives of their choice. 42 U.S.C.  1973(b).  Appellants contend

that creation of each of the three majority minority districts at issue

was justified by Texas' compelling state interest in complying with this

results test.



As we have done in each of our previous cases in which this argument has

been raised as a defense to charges of racial gerrymandering, we assume

without deciding that compliance with the results test, as interpreted

by our precedents, see, e.g., Growe v. Emison, 507 U.S. 25, 37-42

(1993), can be a compelling state interest.  See Shaw II, ante at ___;

Miller, 515 U.S. at ___.  We also reaffirm that the "narrow tailoring"

requirement of strict scrutiny allows the States a limited degree of

leeway in furthering such interests.  If the State has a "strong basis

in evidence," Shaw I, 509 U.S. at 656 (internal quotation marks

omitted), for concluding that creation of a majority minority district

is reasonably necessary to comply with  2, and the districting that is

based on race "substantially addresses the  2 violation," Shaw II, ante

at ___, it satisfies strict scrutiny.  We thus reject, as impossibly

stringent, the District Court's view of the narrow tailoring

requirement, that "a district must have the least possible amount of

irregularity in shape, making allowances for traditional districting

criteria."  861 F.Supp. at 1343.  Cf. Wygant v. Jackson Bd. of Ed., 476

U.S. 267, 291 (1986) (O'CONNOR, J., concurring in part and concurring in

judgment) (state actors should not be "trapped between the competing

hazards of liability" by the imposition of unattainable requirements

under the rubric of strict scrutiny).



A  2 district that is reasonably compact and regular, taking into

account traditional districting principles such as maintaining

communities of interest and traditional boundaries, may pass strict

scrutiny without having to defeat rival compact districts designed by

plaintiffs' experts in endless "beauty contests."  The dissenters

misread us when they make the leap from our disagreement about the facts

of this case to the conclusion that we are creating a "stalemate" by

requiring the States to "get things just right," post at ___ (SOUTER,

J., dissenting), or to draw "the precise compact district that a court

would impose in a successful  2 challenge," post at ___ (STEVENS, J.,

dissenting); see also Shaw II, ante at ___ (STEVENS, J., dissenting). 

Rather, we adhere to our longstanding recognition of the importance in

our federal system of each State's sovereign interest in implementing

its redistricting plan.  See Voinovich v. Quilter, 507 U.S. 147, 156

(1993) ("[I]t is the domain of the States, and not the federal courts,

to conduct apportionment in the first place"); Miller, supra, at ___

("It is well settled that reapportionment is primarily the duty and

responsibility of the State") (internal quotation marks omitted).  Under

our cases, the States retain a flexibility that federal courts enforcing

 2 lack, both insofar as they may avoid strict scrutiny altogether by

respecting their own traditional districting principles, and insofar as

deference is due to their reasonable fears of, and to their reasonable

efforts to avoid,  2 liability.  And nothing that we say today should be

read as limiting "a State's discretion to apply traditional districting

principles," post at ___ (SOUTER, J., dissenting), in majority minority,

as in other, districts.  The constitutional problem arises only from the

subordination of those principles to race.



Strict scrutiny remains, nonetheless, strict.  The State must have a

"strong basis in evidence" for finding that the threshold conditions for

 2 liability are present: first, "that [the minority group] is

sufficiently large and geographically compact to constitute a majority

in a single member district;" second, "that it is politically cohesive;"

and third, "that the white majority votes sufficiently as a bloc to

enable it . . . usually to defeat the minority's preferred candidate."

Growe, supra, at 40 (emphasis added) (quoting Thornburg v. Gingles, 478

U.S. 30, 50-51 (1986)).  And, as we have noted above, the district drawn

in order to satisfy  2 must not subordinate traditional districting

principles to race substantially more than is "reasonably necessary" to

avoid  2 liability.  Districts 18, 29, and 30 fail to meet these

requirements.



We assume, without deciding, that the State had a "strong basis in

evidence" for finding the second and third threshold conditions for  2

liability to be present.  We have, however, already found that all three

districts are bizarrely shaped and far from compact, and that those

characteristics are predominantly attributable to gerrymandering that

was racially motivated and/or achieved by the use of race as a proxy. 

See ___Part II, supra.  District 30, for example, reaches out to grab

small and apparently isolated minority communities which, based on the

evidence presented, could not possibly form part of a compact majority

minority district, and does so in order to make up for minority

populations closer to its core that it shed in a further suspect use of

race as a proxy to further neighboring incumbents' interests.  See supra

at ___.



These characteristics defeat any claim that the districts are narrowly

tailored to serve the State's interest in avoiding liability under  2,

because  2 does not require a State to create, on predominantly racial

lines, a district that is not "reasonably compact."  See Johnson v. De

Grandy, 512 U.S. ___, ___ (1994).  If, because of the dispersion of the

minority population, a reasonably compact majority minority district

cannot be created,  2 does not require a majority minority district; if

a reasonably compact district can be created, nothing in  2 requires the

race-based creation of a district that is far from compact.



Appellants argue that bizarre shaping and noncompactness do not raise

narrow tailoring concerns.  Appellants Lawson et al. claim that, under

Shaw I and Miller, "[s]hape is relevant only as evidence of an improper

motive."  Brief for Appellants Lawson et al. 56.  They rely on our

statement in Miller: Shape is relevant not because bizarreness is a

necessary element of the constitutional wrong or a threshold requirement

of proof, but because it may be persuasive circumstantial evidence that

race for its own sake, and not other districting principles, was the

legislature's dominant and controlling rationale in drawing its district

lines. 515 U.S. at ___.  The United States takes a more moderate

position, accepting that in the context of narrow tailoring,

"consideration must be given to the extent to which the districts drawn

by a State substantially depart from its customary redistricting

practices,"  Brief 36, but asserting that insofar as bizarreness and

noncompactness are necessary to achieve the State's compelling interest

in compliance with  2 "while simultaneously achieving other legitimate

redistricting goals," id. at 37, such as incumbency protection, the

narrowly tailoring requirement is satisfied.  Similarly, JUSTICE

STEVENS' dissent argues that "noncompact districts should . . . be a

permissible method of avoiding violations of [ 2]."  Post at ___.



These arguments cannot save the districts before us.  The Lawson

appellants misinterpret Miller: district shape is not irrelevant to the

narrow tailoring inquiry.  Our discussion in Miller served only to

emphasize that the ultimate constitutional values at stake involve the

harms caused by the use of unjustified racial classifications, and that

bizarreness is not necessary to trigger strict scrutiny.  See Miller,

515 U.S. at ___.  Significant deviations from traditional districting

principles, such as the bizarre shape and noncompactness demonstrated by

the districts here, cause constitutional harm insofar as they convey the

message that political identity is, or should be, predominantly racial. 

For example, the bizarre shaping of Districts 18 and 29, cutting across

preexisting precinct lines and other natural or traditional divisions,

is not merely evidentially significant; it is part of the constitutional

problem insofar as it disrupts nonracial bases of political identity and

thus intensifies the emphasis on race.



Nor is the United States' argument availing here.  In determining that

strict scrutiny applies here, we agreed with the District Court that in

fact the bizarre shaping and noncompactness of these districts were

predominantly attributable to racial, not political, manipulation.  The

United States' argument, and that of the dissent, post at ___ (STEVENS,

J., dissenting), address the case of an otherwise compact majority

minority district that is misshapen by predominantly nonracial,

political manipulation.  See also post at ___ (SOUTER, J., dissenting)

(raising "the possibility that a State could create a majority minority

district that does not coincide with the Gingles shape so long as racial

data is not overused").  We disagree with the factual premise of JUSTICE

STEVENS' dissent, that these districts were drawn using "racial

considerations only in a way reasonably designed" to avoid a  2

violation, post at ___.  The districts before us exhibit a level of

racial manipulation that exceeds what  2 could justify. B



The United States and the State next contend that the district lines at

issue are justified by the State's compelling interest in "ameliorating

the effects of racially polarized voting attributable to past and

present racial discrimination."  Brief for United States 32; Brief for

Appellants Bush et al. 24-25.  In support of that contention, they cite

Texas' long history of discrimination against minorities in electoral

processes, stretching from the Reconstruction to modern times, including

violations of the Constitution and of the VRA.  See, e.g., Williams v.

Dallas, 734 F.Supp. 1317 (ND Tex. 1990); White v. Regester, 412 U.S. 755

(1973); Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321

U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon,

273 U.S. 536 (1927); see also 861 F.Supp. at 1317 (because of its

history of official discrimination, Texas became a covered jurisdiction

under VRA  5 in 1975, and the Department of Justice has since

"frequently interposed objections against the State and its

subdivisions").  Appellants attempt to link that history to evidence

that in recent elections in majority minority districts, "Anglos usually

bloc voted against" Hispanic and African American candidates.  Ibid.



A State's interest in remedying discrimination is compelling when two

conditions are satisfied.  First, the discrimination that the State

seeks to remedy must be specific, "identified discrimination"; second,

the State must have had a "strong basis in evidence" to conclude that

remedial action was necessary, "before it embarks on an affirmative

action program." Shaw II, ante at  ___ (citations omitted).  Here, the

only current problem that appellants cite as in need of remediation is

alleged vote dilution as a consequence of racial bloc voting, the same

concern that underlies their VRA  2 compliance defense, which we have

assumed to be valid for purposes of this opinion.  We have indicated

that such problems will not justify race-based districting unless the

State employ[s] sound districting principles, and . . . the affected

racial group's residential patterns afford the opportunity of creating

districts in which they will be in the majority. Shaw I, 509 U.S. at 657

(internal quotation marks omitted).  Once that standard is applied, our

agreement with the District Court's finding that these districts are not

narrowly tailored to comply with  2 forecloses this line of defense. C



The final contention offered by the State and private appellants is that

creation of District 18 (only) was justified by a compelling state

interest in complying with VRA  5.  We have made clear that  5 has a

limited substantive goal: "to insure that no voting procedure changes

would be made that would lead to a retrogression in the position of

racial minorities with respect to their effective exercise of the

electoral franchise." Miller, 515 U.S. at ___ (quoting Beer v. United

States, 425 U.S. 130, 141 (1976)).  Appellants contend that this

"nonretrogression" principle is implicated because Harris County had,

for two decades, contained a congressional district in which African

American voters had succeeded in selecting representatives of their

choice, all of whom were African Americans.



The problem with the State's argument is that it seeks to justify not

maintenance, but substantial augmentation, of the African American

population percentage in District 18.  At the previous redistricting, in

1980, District 18's population was 40.8% African American.  Plaintiffs'

Exh. 13B, p. 55.  As a result of Hispanic population increases and

African American emigration from the district, its population had

reached 35.1% African American and 42.2% Hispanic at the time of the

1990 census.  The State has shown no basis for concluding that the

increase to a 50.9% African American population in 1991 was necessary to

insure nonretrogression.  Nonretrogression is not a license for the

State to do whatever it deems necessary to insure continued electoral

success; it merely mandates that the minority's opportunity to elect

representatives of its choice not be diminished, directly or indirectly,

by the State's actions.  We anticipated this problem in Shaw I, 509 U.S.

at 655: A reapportionment plan would not be narrowly tailored to the

goal of avoiding retrogression if the State went beyond what was

reasonably necessary to avoid retrogression. Applying that principle, it

is clear that District 18 is not narrowly tailored to the avoidance of 

5 liability. IV



The dissents make several further arguments against today's decision,

none of which address the specifics of this case.  We have responded to

these points previously.  JUSTICE SOUTER, for example, reiterates his

contention from Shaw I that because districts created with a view to

satisfying  2 do not involve "racial subjugation," post at ___, and may

in a sense be "`benign[ly]'" motivated, Shaw I, 509 U.S. at 685 (SOUTER,

J., dissenting), strict scrutiny should not apply to them.  We rejected

that argument in Shaw I, and we reject it now.  As we explained then,

see id. at 653, we subject racial classifications to strict scrutiny

precisely because that scrutiny is necessary to determine whether they

are benign -- as JUSTICE STEVENS' hypothetical of a targeted outreach

program to protect victims of sickle cell anemia, see post at ___,

would, no doubt, be -- or whether they misuse race and foster harmful

and divisive stereotypes without a compelling justification.  We see no

need to revisit our prior debates.



Both dissents contend that the recognition of the Shaw I cause of action

threatens public respect for, and the independence of, the federal

judiciary by inserting the courts deep into the districting process.  We

believe that the dissents both exaggerate the dangers involved, and fail

to recognize the implications of their suggested retreat from Shaw I.



As to the dangers of judicial entanglement, the principal dissent makes

much of cases stemming from State districting plans originally drawn up

before Shaw I, in which problems have arisen from the uncertainty in the

law prior to and during its gradual clarification in Shaw I, Miller, and

today's cases.  See post at ___ (STEVENS, J., dissenting).  We are aware

of the difficulties faced by the States, and by the district courts, in

confronting new constitutional precedents, and we also know that the

nature of the expressive harms with which we are dealing, and the

complexity of the districting process, are such that brightline rules

are not available.  But we believe that today's decisions, which both

illustrate the defects that offend the principles of Shaw I and

reemphasize the importance of the States' discretion in the

redistricting process, see supra at ___, will serve to clarify the

States' responsibilities.  The States have traditionally guarded their

sovereign districting prerogatives jealously, and we are confident that

they can fulfill that requirement, leaving the courts to their customary

and appropriate backstop role.



This Court has now rendered decisions after plenary consideration in

five cases applying the Shaw I doctrine (Shaw I, Miller, Hays, Shaw II,

and this case).  The dissenters would have us abandon those precedents,

suggesting that fundamental concerns relating to the judicial role are

at stake.  See post at ___ (STEVENS, J., dissenting); post at ___ & n.

2, ___ (SOUTER, J., dissenting); Shaw II, ante at ___ & n. 3, ___

(STEVENS, J., dissenting); but see id. at ___ (noting that the judicial

task of distinguishing race-based from non-race-based action in Shaw I

cases is far from unique).  While we agree that those concerns are

implicated here, we believe they point the other way.  Our legitimacy

requires, above all, that we adhere to stare decisis, especially in such

sensitive political contexts as the present, where partisan controversy

abounds.  Legislators and district courts nationwide have modified their

practices -- or, rather, reembraced the traditional districting

practices that were almost universally followed before the 1990 census

-- in response to Shaw I.  Those practices and our precedents, which

acknowledge voters as more than mere racial statistics, play an

important role in defining the political identity of the American voter.

 Our Fourteenth Amendment jurisprudence evinces a commitment to

eliminate unnecessary and excessive governmental use and reinforcement

of racial stereotypes.  See, e.g., Georgia v. McCollum, 505 U.S. 42, 59

(1992) ("the exercise of a peremptory challenge must not be based on

either the race of the juror or the racial stereotypes held by the

party"); Edmonson v. Leesville Concrete Co., 500 U.S. 614, (1991) ("If

our society is to continue to progress as a multiracial democracy, it

must recognize that the automatic invocation of race stereotypes retards

that progress and causes continued hurt and injury"); Powers, 499 U.S.

at 410 ("We may not accept as a defense to racial discrimination the

very stereotype the law condemns"); Holland v. Illinois, 493 U.S. 474,

484, n. 2 (1990) ("[A] prosecutor's `assumption that a black juror may

be presumed to be partial simply because he is black' . . . violates the

Equal Protection Clause"); Batson v. Kentucky, 476 U.S. 79, 104 (1986)

("the Equal Protection Clause prohibits a State from taking any action

based on crude, inaccurate racial stereotypes").  We decline to retreat

from that commitment today. *    *    *    *



The judgment of the District Court is



Affirmed. O'CONNOR, J., concurring



JUSTICE O'CONNOR, concurring.



I write separately to express my view on two points.  First, compliance

with the results test of  2 of the Voting Rights Act (VRA) is a

compelling state interest.  Second, that test can coexist in principle

and in practice with Shaw v. Reno, 509 U.S. 630 (1993), and its progeny,

as elaborated in today's opinions. I



As stated in the plurality opinion, ante at ___ (O'CONNOR, J., joined by

REHNQUIST, C.J., and KENNEDY J.), this Court has thus far assumed

without deciding that compliance with the results test of VRA  2(b) is a

compelling state interest.  See Shaw v. Hunt, ___ U.S. ___, ___ (1996)

(Shaw II); Miller v. Johnson, 515 U.S. ___, ___-___ (1995).  Although

that assumption is not determinative of the Court's decisions today, I

believe that States and lower courts are entitled to more definite

guidance as they toil with the twin demands of the Fourteenth Amendment

and the Voting Rights Act.



The results test is violated if, based on the totality of circumstances,

it is shown that the political processes leading to nomination or

election in the State or political subdivision are not equally open to

participation by members of [e.g., a racial minority group] in that its

members have less opportunity than other members of the electorate to

participate in the political process and to elect representatives of

their choice. 42 U.S.C.  1973(b).



In the 14 years since the enactment of  2(b), we have interpreted and

enforced the obligations that it places on States in a succession of

cases, assuming but never directly addressing its constitutionality. 

See Johnson v. De Grandy, 512 U.S. ___ (1994); Holder v. Hall, 512 U.S.

___ (1994); Voinovich v. Quilter, 507 U.S. 146 (1993); Growe v. Emison,

507 U.S. 25, 37-42 (1993); Chisom v. Roemer, 501 U.S. 380 (1991);

Thornburg v. Gingles, 478 U.S. 30 (1986); cf. Chisom, supra, at 418

(KENNEDY, J., dissenting) (noting that a constitutional challenge to the

statute was not before the Court).  Meanwhile, lower courts have

unanimously affirmed its constitutionality.  See United States v.

Marengo County Comm'n, 731 F.2d 1546, 1556-1563 (CA11), cert. denied,

469 U.S. 976 (1984); Jones v. Lubbock, 727 F.2d 364, 372-375 (CA5 1984);

Shaw v. Hunt, 861 F.Supp. 408, 438 (EDNC 1994), aff'd, Shaw II, ante, p.

___; Prosser v. Elections Bd., 793 F.Supp. 859, 869 (WD Wis. 1992);

Wesley v. Collins, 605 F.Supp. 802, 808 (MD Tenn. 1985), aff'd, 791 F.2d

1255 (CA6 1986); Jordan v. Winter, 604 F.Supp. 807, 811 (ND Miss.),

aff'd sub nom Allain v. Brooks, 469 U.S. 1002 (1984); Sierra v. El Paso

Independent School Dist., 591 F.Supp. 802, 806 (WD Tex. 1984); Major v.

Treen, 574 F.Supp. 325, 342-349 (ED La. 1983); accord, Hartman, Racial

Vote Dilution and Separation of Powers:  An Exploration of the Conflict

Between the Judicial "Intent" and the Legislative "Results" Standards,

50 Geo.Wash.L.Rev. 689, 739-752 (1982).  Cf. South Carolina v.

Katzenbach, 383 U.S. 301 (1966) (upholding the original VRA as a valid

exercise of Congress' power under  2 of the Fifteenth Amendment);

Fullilove v. Klutznick, 448 U.S. 448, 477 (1980) (Katzenbach and its

successors interpreting  2 of the Fifteenth Amendment "confirm that

congressional authority extends beyond the prohibition of purposeful

discrimination to encompass state action that has discriminatory impact

perpetuating the effects of past discrimination"); White v. Alabama, 867

F.Supp. 1519, 1549 (MD Ala. 1994) (the results test "has not been held

unconstitutional and complying with it remains a strong state

interest"), vacated and remanded on other grounds, 74 F.3d 1058, 1069

(CA11 1996) (noting that "Section 2 was enacted to enforce the Fifteenth

Amendment's prohibition against denying a citizen the right to vote `on

account of race'").



Against this background, it would be irresponsible for a State to

disregard the  2 results test.  The Supremacy Clause obliges the States

to comply with all constitutional exercises of Congress' power.  See

U.S.Const., Art. VI, cl. 2.  Statutes are presumed constitutional, see,

e.g., Fairbank v. United States, 181 U.S. 283, 285 (1901), and that

presumption appears strong here in light of the weight of authority

affirming the results test's constitutionality.  In addition,

fundamental concerns of federalism mandate that States be given some

leeway so that they are not "trapped between the competing hazards of

liability."  Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 291 (1986)

(O'CONNOR, J., concurring).  We should allow States to assume the

constitutionality of  2 of the Voting Rights Act, including the 1982

amendments.



This conclusion is bolstered by concerns of respect for the authority of

Congress under the Reconstruction Amendments.  See Rome v. United

States, 446 U.S. 156, 179 (1980).  The results test of  2 is an

important part of the apparatus chosen by Congress to effectuate this

Nation's commitment "to confront its conscience and fulfill the

guarantee of the Constitution" with respect to equality in voting. 

S.Rep. No. 97-417, p. 4 (1982).  Congress considered the test "necessary

and appropriate to ensure full protection of the Fourteenth and

Fifteenth Amendments rights."  Id. at 27.  It believed that without the

results test, nothing could be done about "overwhelming evidence of

unequal access to the electoral system," id. at 26, or about "voting

practices and procedures [that] perpetuate the effects of past

purposeful discrimination," id. at 40.  And it founded those beliefs on

the sad reality that "there still are some communities in our Nation

where racial politics do dominate the electoral process."  Id. at 33. 

Respect for those legislative conclusions mandates that the  2 results

test be accepted and applied unless and until current lower court

precedent is reversed and it is held unconstitutional.



In my view, therefore, the States have a compelling interest in

complying with the results test as this Court has interpreted it. II



Although I agree with the dissenters about  2's role as part of our

national commitment to racial equality, I differ from them in my belief

that that commitment can and must be reconciled with the complementary

commitment of our Fourteenth Amendment jurisprudence to eliminate the

unjustified use of racial stereotypes.  At the same time that we combat

the symptoms of racial polarization in politics, we must strive to

eliminate unnecessary race-based state action that appears to endorse

the disease.



Today's decisions, in conjunction with the recognition of the compelling

state interest in compliance with the reasonably perceived requirements

of  2, present a workable framework for the achievement of these twin

goals.  I would summarize that framework, and the rules governing the

States' consideration of race in the districting process, as follows.



First, so long as they do not subordinate traditional districting

criteria to the use of race for its own sake or as a proxy, States may

intentionally create majority minority districts, and may otherwise take

race into consideration, without coming under strict scrutiny.  See ante

at ___ (plurality opinion); post at ___ & n. 8, ___ (STEVENS, J.,

dissenting); post at ___ (SOUTER, J., dissenting).  Only if traditional

districting criteria are neglected and that neglect is predominantly due

to the misuse of race does strict scrutiny apply.  Ante at ___

(plurality opinion).



Second, where voting is racially polarized,  2 prohibits States from

adopting districting schemes that would have the effect that minority

voters "have less opportunity than other members of the electorate to .

. . elect representatives of their choice."   2(b).  That principle may

require a State to create a majority minority district where the three

Gingles factors are present-viz., (i) the minority group "is

sufficiently large and geographically compact to constitute a majority

in a single-member district," (ii) "it is politically cohesive," and

(iii) "the white majority votes sufficiently as a bloc to enable it . .

. usually to defeat the minority's preferred candidate," Thornburg v.

Gingles, 478 U.S. at 50-51.



Third, the state interest in avoiding liability under VRA  2 is

compelling.  See supra at ; post at ___ (STEVENS, J., dissenting); post

at ___ (SOUTER, J., dissenting).  If a State has a strong basis in

evidence for concluding that the Gingles factors are present, it may

create a majority minority district without awaiting judicial findings. 

Its "strong basis in evidence" need not take any particular form,

although it cannot simply rely on generalized assumptions about the

prevalence of racial bloc voting.



Fourth, if a State pursues that compelling interest by creating a

district that "substantially addresses" the potential liability, Shaw

II, ante at ___, and does not deviate substantially from a hypothetical

court-drawn  2 district for predominantly racial reasons, cf. ante at

___ (plurality opinion) (explaining how District 30 fails to satisfy

these criteria), its districting plan will be deemed narrowly tailored. 

Cf. ante at ___ (plurality opinion) (acknowledging this possibility);

post at ___ (SOUTER, J., dissenting) (same); post at ___ (STEVENS, J.,

dissenting) (contending that it is applicable here).



Finally, however, districts that are bizarrely shaped and noncompact,

and that otherwise neglect traditional districting principles and

deviate substantially from the hypothetical court-drawn district, for

predominantly racial reasons, are unconstitutional.  See ante at ___

(plurality opinion).



District 30 illustrates the application of these principles.  Dallas

County has a history of racially polarized voting.  See, e.g., White v.

Regester, 412 U.S. 755, (1973); Lipscomb v. Wise, 399 F.Supp. 782,

785-786 (ND Tex. 1975), rev'd, 551 F.2d 1043 (CA5 1977), rev'd, 437 U.S.

535 (1978).  One year before the redistricting at issue here, a district

court invalidated under  2 the Dallas City Council election scheme,

finding racial polarization and that candidates preferred by African

American voters were consistently defeated.  See Williams v. Dallas, 734

F.Supp. 1317, 1387-1394 (ND Tex. 1990).  Expert testimony in this

litigation also confirmed the existence of racially polarized voting in

and around Dallas County.  4 Tr. 187; see also App. 227.  With respect

to geographical compactness, the record contains two quite different

possible designs for District 30, the original Johnson Plan, id. at 139,

and the Owens-Pate Plan, id. at 141, that are reasonably compact and

include, respectively, 44% and 45.6% African American populations.  This

evidence provided a strong basis for Texas' belief that the creation of

a majority minority district was appropriate.  But Texas allowed race to

dominate the drawing of District 30 to the almost total exclusion of

nonracial districting considerations, and ultimately produced a district

that, because of the misuse of race as a proxy in addition to legitimate

efforts to satisfy  2, is bizarrely shaped and far from compact.  See

ante at ___ & n., ___ (plurality opinion); compare post at ___ (STEVENS,

J., dissenting).  It thus came under strict scrutiny and failed the

narrow tailoring test.



As the disagreement among Members of this Court over District 30 shows,

the application of the principles that I have outlined sometimes

requires difficult exercises of judgment.  That difficulty is

inevitable.  The Voting Rights Act requires the States and the courts to

take action to remedy the reality of racial inequality in our political

system, sometimes necessitating race-based action, while the Fourteenth

Amendment requires us to look with suspicion on the excessive use of

racial considerations by the government.  But I believe that the States,

playing a primary role, and the courts, in their secondary role, are

capable of distinguishing the appropriate and reasonably necessary uses

of race from its unjustified and excessive uses. KENNEDY, J., concurring



JUSTICE KENNEDY, concurring.



I join the plurality opinion, but the statements in Part II of the

opinion that strict scrutiny would not apply to all cases of intentional

creation of majority minority districts, ante at ___, require comment. 

Those statements are unnecessary to our decision, for strict scrutiny

applies here.  I do not consider these dicta to commit me to any

position on the question whether race is predominant whenever a State,

in redistricting, foreordains that one race be the majority in a certain

number of districts or in a certain part of the State.  In my view, we

would no doubt apply strict scrutiny if a State decreed that certain

districts had to be at least 50 percent white, and our analysis should

be no different if the State so favors minority races.



We need not answer this question here, for there is ample evidence that

otherwise demonstrates the predominance of race in Texas' redistricting,

as the plurality shows, ante at ___.  And this question was not at issue

in DeWitt v. Wilson, 856 F.Supp. 1409 (ED Cal. 1994), summarily aff'd in

part and dism'd in part, 515 U.S. ___ (1995).  (I note that our summary

affirmance in DeWitt stands for no proposition other than that the

districts reviewed there were constitutional.  We do not endorse the

reasoning of the district court when we order summary affirmance of the

judgment.  Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam);

Edelman v. Jordan, 415 U.S. 651, 671 (1974).)



On the narrow tailoring issue, I agree that the districts challenged

here were not reasonably necessary to serve the assumed compelling state

interest in complying with  2 of the Voting Rights Act of 1965, 42

U.S.C.  1973.  As the plurality opinion indicates, ante at ___, in order

for compliance with  2 to be a compelling interest, the State must have

a strong basis in the evidence for believing that all three of the

threshold conditions for a  2 claim are met: [F]irst, "that [the

minority group] is sufficiently large and geographically compact to

constitute a majority in a single-member district;" second, "that it is

politically cohesive;" and third, "that the white majority votes

sufficiently as a bloc to enable it . . . usually to defeat the

minority's preferred candidate." Growe v. Emison, 507 U.S. 25, 40

(1993), quoting Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).  The

first Gingles condition refers to the compactness of the minority

population, not to the compactness of the contested district.  As the

plurality observes, [i]f, because of the dispersion of the minority

population, a reasonably compact majority minority district cannot be

created,  2 does not require a majority minority district. . . . Ante at

___.  We may assume, as the plurality does expressly, ibid. that there

was sufficient evidence of racial polarization to fulfill the second and

third Gingles conditions, and we may assume, as must be done to reach

the narrow tailoring question, that the African American and Hispanic

populations in Harris County and the African American population in

Dallas County were each concentrated enough to form a majority in a

reasonably compact district, thereby meeting the first Gingles

condition.



If a State has the assumed compelling interest in avoiding  2 liability,

it still must tailor its districts narrowly to serve that interest. 

"[T]he districting that is based on race [must] `substantially addres[s]

the  2 violation.'"  Ante at ___ (quoting Shaw v. Hunt, ante at ___

(Shaw II)).  The State may not engage in districting based on race

except as reasonably necessary to cure the anticipated  2 violation, nor

may it use race as a proxy to serve other interests.  Ante at ___.  The

plurality gives as an example of the former the fact that "District 30 .

. . reaches out to grab small and apparently isolated minority

communities which, based on the evidence presented, could not possibly

form part of a compact majority minority district."  Ibid. (referring to

tentacles of District 30 that coil around outlying African American

communities in Collin and Tarrant Counties, ante at ___).  And, as the

plurality further holds in a portion of its predominant-factor analysis

that is central to the narrow tailoring inquiry, District 30 also

involved the illicit use of race as a proxy when legislators shifted

blocs of African American voters to districts of incumbent Democrats in

order to promote partisan interests.  See ante at ___.



Narrow tailoring is absent in Districts 18 and 29 as well.  Although the

State could have drawn either a majority African American or majority

Hispanic district in Harris County without difficulty, there is no

evidence that two reasonably compact majority minority districts could

have been drawn there.  Of the major alternative plans considered below,

only the Owens-Pate plan drew majority African American and majority

Hispanic districts in Harris County, App. 142, but those districts were

not compact.  Section 2 does not require the State to create two

noncompact majority minority districts just because a compact district

could be drawn for either minority independently.  See ante at ___ (" 2

does not require a State to create, on predominantly racial lines, a

district that is not `reasonably compact'"); Johnson v. De Grandy, 512

U.S. __, __ (1994) (affirming, upon a finding of no vote dilution,

district court decision not to give  2 remedies to both African

Americans and Hispanics because population overlap made the remedies

mutually exclusive).  The race-based districting that the State

performed in drawing Districts 18, 29, and 30 was not justified by  2,

or indeed by any other compelling interest, either real or assumed. 

That itself suffices to defeat the State's claim that those three

districts were narrowly tailored.  Shaw II, ante at ___.  (In this

respect, I disagree with the apparent suggestion in JUSTICE O'CONNOR's

separate concurrence that a court should conduct a second

predominant-factor inquiry in deciding whether a district was narrowly

tailored, see ante at 6.  There is nothing in the plurality opinion or

any opinion of the Court to support that proposition.  The simple

question is whether the race-based districting was reasonably necessary

to serve a compelling interest.)



While  2 does not require a noncompact majority minority district,

neither does it forbid it, provided that the rationale for creating it

is proper in the first instance.  Districts not drawn for impermissible

reasons or according to impermissible criteria may take any shape, even

a bizarre one.  States are not prevented from taking into account

race-neutral factors in drawing permissible majority minority districts.

 If, however, the bizarre shape of the district is attributable to

race-based districting unjustified by a compelling interest (e.g.,

gratuitous race-based districting or use of race as a proxy for other

interests), such districts may "cause constitutional harm insofar as

they convey the message that political identity is, or should be,

predominantly racial," ante at ___.  While districts "may pass strict

scrutiny without having to defeat rival compact districts designed by

plaintiffs' experts in endless `beauty contests,'" ante at ___, the

District Court was right to declare unconstitutional the egregious,

unjustified race-based districting that occurred here. THOMAS, J.,

concurring



JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the

judgment.



In my view, application of strict scrutiny in this case was never a

close question.  I cannot agree with JUSTICE O'CONNOR's assertion that

strict scrutiny is not invoked by the intentional creation of majority

minority districts.  See ante at ___.  Though Shaw v. Reno, 509 U.S.

630, 649 (1993) (Shaw I), expressly reserved that question, we

effectively resolved it in subsequent cases.  Only last Term, in Adarand

Constructors, Inc. v. Pena, 515 U.S. __, __ (1995), we vigorously

asserted that all governmental racial classifications must be strictly

scrutinized.  And in Miller v. Johnson, 515 U.S. __ (1995), Georgia's

concession that it intentionally created majority minority districts was

sufficient to show that race was a predominant, motivating factor in its

redistricting.  Id. at __.



Strict scrutiny applies to all governmental classifications based on

race, and we have expressly held that there is no exception for

race-based redistricting.  Id. at __; Shaw I, supra, at   While we have

recognized the evidentiary difficulty of proving that a redistricting

plan is, in fact, a racial gerrymander, see Miller, supra, at __; Shaw

I, 509 U.S. at  we have never suggested that a racial gerrymander is

subject to anything less than strict scrutiny.  See id. at 646 ("The

difficulty of proof, of course, does not mean that a racial gerrymander,

once established, should receive less scrutiny under the Equal

Protection Clause than other state legislation classifying citizens by

race").



In Shaw I, we noted that proving a racial gerrymander "sometimes will

not be difficult at all," ibid. and suggested that evidence of a highly

irregular shape or disregard for traditional race-neutral districting

principles could suffice to invoke strict scrutiny.  We clarified in

Miller that a plaintiff may rely on both circumstantial and direct

evidence and said that a plaintiff "must prove that the legislature

subordinated traditional race-neutral districting principles . . . to

racial considerations."  515 U.S. at __.  The shape of Georgia's

Eleventh District was itself "quite compelling" evidence of a racial

gerrymander, but there was other evidence that showed that the

legislature was motivated by a "predominant, overriding desire" to

create a third majority black district.  That evidence was the State's

own concession that the legislature had intentionally created an

additional majority black district.  See id. at __.  On that record, we

found that the district court could not have "reached any conclusion

other than that race was the predominant factor in drawing Georgia's

Eleventh District."  Id. at __.



We have said that impermissible racial classifications do not follow

inevitably from a legislature's mere awareness of racial demographics. 

See id. at __; Shaw I, supra, at 646.  But the intentional creation of a

majority minority district certainly means more than mere awareness that

application of traditional, race-neutral districting principles will

result in the creation of a district in which a majority of the

district's residents are members of a particular minority group.  See

Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979)

(distinguishing discriminatory intent from "intent as volition" or

"intent as awareness of consequences").  In my view, it means that the

legislature affirmatively undertakes to create a majority minority

district that would not have existed but for the express use of racial

classifications -- in other words, that a majority minority district is

created "because of," and not merely "in spite of," racial demographics.

 See ibid.  When that occurs, traditional race-neutral districting

principles are necessarily subordinated (and race necessarily

predominates), and the legislature has classified persons on the basis

of race.  The resulting redistricting must be viewed as a racial

gerrymander.



Our summary affirmance of DeWitt v. Wilson, 856 F.Supp. 1409 (ED Cal.

1994), summarily aff'd in part and dism'd in part, 515 U.S. __ (1995),

cannot justify exempting intentional race-based redistricting from our

well established Fourteenth Amendment standard. When we summarily

affirm, without opinion, the judgment of a three-judge district court we

affirm the judgment but not necessarily the reasoning by which it was

reached.  An unexplicated summary affirmance settles the issues for the

parties, and is not to be read as a renunciation by this Court of

doctrines previously announced in our opinions after full argument.

Fusari v. Steinberg, 419 U.S. 379, (1975) (Burger, C.J., concurring)

(footnote omitted).  I would not read our summary affirmance of DeWitt

to eviscerate the explicit holding of Adarand or to undermine the force

of our discussion of Georgia's concessions in Miller.



In this case, Texas readily admits that it intentionally created

majority minority districts and that those districts would not have

existed but for its affirmative use of racial demographics.  As the

State concedes in its brief: Texas intentionally maintained [District]

18 as an African American opportunity district and intentionally created

[Districts] 29 and 30 as minority opportunity districts in order to

comply voluntarily with its reasonable belief, based upon strong

evidence, that it was required to do so by the Voting Rights Act, and

because it desired to insure that minorities who have historically been

excluded from the electoral process in Texas had a reasonable

opportunity to elect candidates of their choice. Brief for State

Appellants 25.  See also ante at ___ (reciting similar concessions by

Texas).  That is enough to require application of strict scrutiny in

this case.  I am content to reaffirm our holding in Adarand that all

racial classifications by government must be strictly scrutinized and,

even in the sensitive area of state legislative redistricting, I would

make no exceptions.



I am willing to assume without deciding that the State has asserted a

compelling state interest.  Given that assumption, I agree that the

State's redistricting attempts were not narrowly tailored to achieve its

asserted interest.  I concur in the judgment. STEVENS, J., dissenting



JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join,

dissenting.



The 1990 census revealed that Texas' population had grown, over the past

decade, almost twice as fast as the population of the country as a

whole.  As a result, Texas was entitled to elect three additional

Representatives to the United States Congress, enlarging its delegation

from 27 to 30.  Because Texas' growth was concentrated in South Texas

and the cities of Dallas and Houston, the state legislature concluded

that the new congressional districts should be carved out of existing

districts in those areas.  The consequences of the political battle that

produced the new map are some of the most oddly shaped congressional

districts in the United States.



Today, the Court strikes down three of Texas' majority  minority

districts, concluding, inter alia, that their odd shapes reveal that the

State impermissibly relied on predominantly racial reasons when it drew

the districts as it did.  For two reasons, I believe that the Court errs

in striking down those districts.



First, I believe that the Court has misapplied its own tests for racial

gerrymandering, both by applying strict scrutiny to all three of these

districts, and then by concluding that none can meet that scrutiny.  In

asking whether strict scrutiny should apply, the Court improperly

ignores the "complex interplay" of political and geographical

considerations that went into the creation of Texas' new congressional

districts, Miller v. Johnson, 515 U.S. ___, ___ (1995), and focuses

exclusively on the role that race played in the State's decisions to

adjust the shape of its districts.  A quick comparison of the

unconstitutional majority minority districts with three equally bizarre

majority Anglo districts, compare ante at Appendix A-C, with infra at

Appendix A-C [omitted -- see printed edition], demonstrates that race

was not necessarily the predominant factor contorting the district

lines.  I would follow the fair implications of the District Court's

findings, and conclude that Texas' entire map is a political, not a

racial, gerrymander.  See ___Part IV, infra.



Even if strict scrutiny applies, I would find these districts

constitutional, for each considers race only to the extent necessary to

comply with the State's responsibilities under the Voting Rights Act

while achieving other race-neutral political and geographical

requirements.  The plurality's finding to the contrary unnecessarily

restricts the ability of States to conform their behavior to the Voting

Rights Act while simultaneously complying with other race-neutral goals.

 See ___Part V, infra.



Second, even if I concluded that these districts failed an appropriate

application of this still-developing law to appropriately read facts, I

would not uphold the District Court decision.  The decisions issued

today serve merely to reinforce my conviction that the Court has, with

its "analytically distinct" jurisprudence of racial gerrymandering, Shaw

v. Reno (Shaw I), 509 U.S. 630, 652 (1993), struck out into a

jurisprudential wilderness that lacks a definable constitutional core

and threatens to create harms more significant than any suffered by the

individual plaintiffs challenging these districts.  See Parts ___VI-VII,

infra; Shaw v. Hunt (Shaw II), ante at ___ (STEVENS, J., dissenting). 

Though we travel ever farther from it with each passing decision, I

would return to the well traveled path that we left in Shaw I. I



The factors motivating Texas' redistricting plan are clearly revealed in

the results of the 1992 elections.  Both before and immediately after

the 1990 census, the Democratic Party was in control of the Texas

Legislature.  Under the new map in 1992, more than two-thirds of the

Districts -- including each of the new ones -- elected Democrats, even

though Texas voters are arguably more likely to vote Republican than

Democrat.  Incumbents of both parties were just as successful:  26 of

the 27 incumbents were reelected, while each of the three new districts

elected a state legislator who had essentially acted as an incumbent in

the districting process, giving "incumbents" a 97 percent success rate.



It was not easy for the State to achieve these results while

simultaneously guaranteeing that each district enclosed the residence of

its incumbent, contained the same number of people, and complied with

other federal and state districting requirements.  Much of Dallas and

Houston, for example, was already represented in Congress by Democrats,

and creating new Democratic districts in each city while ensuring

politically safe seats for sitting Representatives required significant

political gerrymandering.  This task was aided by technological and

informational advances that allowed the State to adjust lines on the

scale of city blocks, thereby guaranteeing twists and turns that would

have been essentially impossible in any earlier redistricting.  "[T]he

result of the Legislature's efforts," the District Court concluded, was

"a crazy-quilt of districts" that bore little resemblance to "the work

of public-spirited representatives."  Vera v. Richards, 861 F.Supp.

1304, 1309 (SD Tex. 1994); see, e.g., Appendix A-D [omitted -- see

printed edition].



It is clear that race also played a role in Texas' redistricting

decisions.  According to the 1990 Census, Texas contained 16,986,510

residents, of whom 22.5% were of Hispanic origin, and 11.6% were

non-Hispanic African American.  861 F.Supp. at 1311.  Under the pre-1990

districting scheme, Texas' 27-member delegation included four Hispanics

and one African American.  In Harris County, a concentrated Hispanic

community was divided among several majority Anglo districts as well as

the majority minority District 18.  In Dallas County, the majority black

community in South Dallas was split down the middle between two majority

Anglo districts.  The legislature was well aware, after the 1990 census,

that the minority communities in each county were disproportionately

responsible for the growth in population that gained three

representatives for the State.  Given the omnipresence of  2 of the

Voting Rights Act, 42 U.S.C.  1973 (1994), the demographics of the two

communities, and the pressure from leaders of the minority communities

in those cities, it was not unreasonable -- and certainly not invidious

discrimination of any sort -- for the State to accede to calls for the

creation of majority minority districts in both cities.



While complying with a multitude of other political and legal

requirements, then, Texas created three new majority minority

congressional districts and significantly reconfigured one preexisting

district.  The District Court concluded that the State impermissibly

emphasized race over nonracial factors when it drew two of these new

districts (District 30 in Dallas and District 29 in Houston) and the

reconfigured District 18 in Houston.  To determine whether the Court

correctly affirms that decision, I begin, as does the plurality, by

asking whether "strict scrutiny" should be applied to the State's

consideration of race in the creation of these majority minority

districts. II



We have traditionally applied strict scrutiny to state action that

discriminates on the basis of race.  Prior to Shaw I, however, we did so

only in cases in which that discrimination harmed an individual or set

of individuals because of their race.  In contrast, the harm identified

in Shaw I and its progeny is much more diffuse.  See Shaw II, ante at

___ (STEVENS, J., dissenting).  Racial gerrymandering of the sort being

addressed in these cases is "discrimination" only in the sense that the

lines are drawn based on race, not in the sense that harm is imposed on

a given person on account of their race.  Id. at ___.



Aware of this distinction, a majority of this Court has endorsed a

position crucial to a proper evaluation of Texas' congressional

districts:  neither the Equal Protection Clause nor any other provision

of the Constitution was offended merely because the legislature

considered race when it deliberately created three majority minority

districts.  The plurality's statement that strict scrutiny "does [not]

apply to all cases of intentional creation of majority minority

districts," ante at ___, merely caps a long line of discussions,

stretching from Shaw I to Shaw II, which have both expressly and

implicitly set forth precisely that conclusion.



The conclusion that race-conscious districting should not always be

subject to strict scrutiny merely recognizes that our equal protection

jurisprudence can sometimes mislead us with its rigid characterization

of suspect classes and levels of scrutiny.  As I have previously noted,

all equal protection jurisprudence might be described as a form of

rational basis scrutiny; we apply "strict scrutiny" more to describe the

likelihood of success than the character of the test to be applied.  See

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, (1985) (STEVENS,

J., concurring).  Because race has rarely been a legitimate basis for

state classifications, and more typically an irrational and invidious

ground for discrimination, a "virtually automatic invalidation of racial

classifications" has been the natural result of the application of our

equal protection jurisprudence.  Id. at 453.  In certain circumstances,

however, when the state action (i) has neither the intent nor effect of

harming any particular group, (ii) is not designed to give effect to

irrational prejudices held by its citizens but to break them down, and

(iii) uses race as a classification because race is "relevant" to the

benign goal of the classification, id. at 454, we need not view the

action with the typically fatal skepticism that we have used to strike

down the most pernicious forms of state behavior.  See Wygant v. Jackson

Bd. of Ed., 476 U.S. 267, (1986) (STEVENS, J., dissenting); Regents of

Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978).  While the Court

insisted in Shaw I that racial classifications of this sort injure the

Nation (though not necessarily any particular group) in myriad ways, see

509 U.S. at  redistricting that complies with the three factors I

outline above simply is not the sort of despicable practice that has

been taken in the past to exclude minorities from the electoral process.

 See Shaw II, ante at ___ (STEVENS, J., dissenting); Shaw I, 509 U.S. at

(SOUTER, J., dissenting); cf., e.g., Gomillion v. Lightfoot, 364 U.S.

339 (1960); Terry v. Adams, 345 U.S. 461 (1953).  While any racial

classification may risk some stereotyping, the risk of true

"discrimination" in this case is extremely tenuous in light of the

remedial purpose the classification is intended to achieve and the long

history of resistance to giving minorities a full voice in the political

process.  Given the balancing of subtle harms and strong remedies -- a

balancing best left to the political process, not to our own well

developed but rigid jurisprudence -- the plurality reasonably concludes

that race-conscious redistricting is not always a form of

"discrimination" to which we should direct our most skeptical eye. III



While the Court has agreed that race can, to a point, govern the drawing

of district lines, it nonetheless suggests that at a certain point, when

the State uses race "too much," illegitimate racial stereotypes threaten

to overrun and contaminate an otherwise legitimate redistricting

process.  In Miller, the Court concluded that this point was reached

when "race for its own sake, and not other districting principles, was

the . . . dominant and controlling rationale" behind the shape of the

district.  515 U.S. at ___.  For strict scrutiny to apply, therefore,

the plaintiff must demonstrate that the legislature subordinated

traditional race-neutral districting principles, including but not

limited to compactness, contiguity, [and] respect for political

subdivisions . . . to racial considerations. Id. at ___; see also id. at

___ (O'CONNOR, J., concurring) (strict scrutiny should be applied only

if State emphasized race in "substantial disregard" for traditional

districting principles); ante at ___ (opinion of O'CONNOR, J.).



Of course, determining the "predominant" motive of the Texas

Legislature, id. at ___ (citing Miller, 515 U.S. at ___) is not a simple

matter.  The members of that body faced many unrelenting pressures when

they negotiated the creation of the contested districts.  They had to

ensure that there was no deviation in population from district to

district.{10}  They reasonably believed that they had to create

districts that would comply with the Voting Rights Act.  See supra at

___.  If the redistricting legislation was to be enacted, they had to

secure the support of incumbent Congressmen of both parties by drawing

districts that would ensure their election.  And all of these desires

had to be achieved within a single contiguous district.  Every time a

district line was shifted from one place to another, each of these

considerations was implicated, and additional, compensating shifts were

necessary to ensure that all competing goals were simultaneously

accomplished.  In such a constrained environment, there will rarely be

one "dominant and controlling" influence.  Nowhere is this better

illustrated than in Dallas' District 30 where at the very least, it is

clear that race was not such an overriding factor. IV



The Court lists several considerations which, when taken in combination,

lead it to conclude that race, and no other cause, was the predominant

factor influencing District 30's configuration.  First, there is the

shape itself.  Second, there is evidence that the districts were

intentionally drawn with consciousness of race in an effort to comply

with the Voting Rights Act.  Third, the Court dismisses two race-neutral

considerations (communities of interest and incumbency protection) that

petitioners advanced as race-neutral considerations that led to the odd

shape of the districts.  Finally, the plurality concludes that race was

impermissibly used as a proxy for political affiliation during the

course of redistricting.  In my opinion, an appropriate reading of the

record demonstrates that none of these factors- either singly or in

combination-suggests that racial considerations "subordinated"

race-neutral districting principles.  I discuss each in turn. Bizarre

Shape



As noted, supra at 1, and n. 6, Texas' Legislature concluded that it

would add a new district to Dallas County that would incorporate the

rapidly growing minority communities in South Dallas.  To do so, the new

district would have to fit into the existing districts:  Before

redistricting, most of southern Dallas County (including the African

American communities in South Dallas) was divided between Districts 5

and 24, represented by Democratic Representatives Bryant and Frost,

respectively.  The middle of the northern section of the county was

divided between Districts 3 and 26, both represented by Republicans.



Then-State Senator Johnson began the redistricting process by proposing

a compact, Democratic, majority minority district encompassing all of

South Dallas.  See App. 139; 861 F.Supp. at 1321, n. 22. 

Representatives Bryant and Frost objected, however, because the proposed

district included not only Johnson's residence, but their own homes,

located within only 10 miles of each other on opposite sides of the

city.  Furthermore, Johnson's plan transferred many of Frost and

Bryant's most reliable Democratic supporters into the proposed district.

 Rather than acquiesce to the creation of this compact majority minority

district, Frost and Bryant insisted that the new district avoid both

their own homes and many of the communities that had been loyal to them.

 Johnson's plan was, therefore, "quickly abandoned."  Ibid.



To accommodate the incumbents' desires, District 30 required

geographical adjustments that had telling effects on its shape.  First,

two notches carefully avoiding the residences of and neighborhoods

surrounding Frost and Bryant were carved out of District 30's side.  See

Appendix D, infra.{11}  [Omitted -- see printed edition.]  Furthermore,

Frost and Bryant retained several communities -- many majority black --

along the southern and eastern sides of the proposed district.  See

generally 861 F.Supp. at 1321-1322.{12}



Had these communities been retained by District 30, it would have been

much more compact.  By giving up these voters to Frost and Bryant,

however, District 30 was forced to seek out population and Democratic

voters elsewhere.  The Democratic incumbents had blocked its way to the

south and east; north (and, to a lesser extent, west) was the only way

it could go.{13}



It would not have helped the prospects of a Democratic candidate in the

new District 30 had it simply plowed directly north to pick up

additional population.  Immediately north of the city of Dallas are the

"Park Cities," which include a population that has voted strongly

Republican throughout recent elections.  See State's Exhs. 9A and 9B

(depicting one index of political affiliation in 1990 and 1992

elections).  Rather than dilute the Democratic vote (and threaten the

Republican incumbents) in this manner, District 30 skirted these

communities on the west, and then curved east, picking up communities on

either side of the region's major interstate freeways.{14}



As the process of extracting Democratic voters out of the core of the

Republican districts in North Dallas progressed, the distinction between

Democratic and Republican voters moved from the precinct level (the

smallest level at which political affiliation data was immediately

available in the redistricting programs) down to the smaller census

block level (the smallest level at which demographic and socioeconomic

data was available).{15}  In an effort to further identify which census

blocks were likely to support their candidacy, the incumbents used not

only census data, but their own long experience as local representatives

as well as the experiences of staffers and supporters.  See 3 Tr.

177-179, 181-182 (describing methods, such as simply driving through

neighborhoods, that staff members and candidates for office used to

develop block-specific information regarding the likely political

affiliation of voters).{16}



In addition, although information about political affiliation was not

available at the block level through the computer program, legislators

and staffers were able to get relatively precise information about voter

preferences through a system, developed by the Democratic Party, which

allowed candidates to determine in which party primary voters had

participated.  Id. at 179-180.  By examining this information,

legislators were able to further fine-tune district lines to include

likely supporters and exclude those who would probably support their

opponents.  Cf. Gaffney v. Cummings, 412 U.S. 735, 753 (1973) ("[W]hen

[political profiles are] overlaid on a census map, it requires no

special genius to recognize the political consequences of drawing a

district line along one street rather than another").{17}



The careful gerrymandering conducted by the Texas Legislature under the

watchful eye of Johnson and her staff was a success not only on a

districtwide level (Johnson was elected with over 70% of the vote in

both 1992 and 1994), but on a precinct level.  While the pre-1990

precincts in the heavily Republican North Dallas gave little reason for

a Democratic incumbent to hope for much support, see State's Exh. 9B

(maps of Dallas and Collin Counties with 1990 election index results

showing only a few Democrat-leaning precincts in North Dallas), the

gerrymandering that occurred in 1991 resulted in smaller precincts that,

by all indications, gathered concentrations of Democratic voters into

District 30 while leaving concentrations of Republican voters in

surrounding Districts 3 and 26.  See State's Exh. 9A (maps of Dallas and

Collin Counties with 1992 election index results showing many more

Democrat-leaning precincts in the North Dallas sections of District 30).



Presumably relying on Shaw I's statement that a reapportionment plan may

be so highly irregular that, on its face, it rationally cannot be

understood as anything other than an effort to "segregat[e] voters" on

the basis of race, 509 U.S. at  the plurality offers mathematical proof

that District 30 is one of the most bizarre districts in the Nation, see

ante at ___, and relates the now-obligatory florid description of the

district's shape, ante at ___; see also ante at ___ (describing District

29).  As the maps appended to this opinion demonstrate, neither District

30 nor the Houston districts have a monopoly on either of these

characteristics.  Three other majority white districts are ranked along

with the majority minority districts as among the oddest in the Nation. 

See Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting

Rights:  Evaluating Election-District Appearances After Shaw v. Reno, 92

Mich.L.Rev. 483, 565 (1993).  Perhaps the clearest example of partisan

gerrymandering outside of the context of majority minority districts is

District 6, a majority Anglo district represented by a Republican.{18}



For every geographic atrocity committed by District 30, District 6

commits its own and more.  District 30 split precincts to gerrymander

Democratic voters out of Republican precincts; District 6 did the same. 

See State's Exh. 9B (Tarrant County, showing District 6 cuts).  District

30 travels down a river bed; District 6 follows the boundaries of a

lake.  District 30 combines various unrelated communities of interest

within Dallas and its suburbs; District 6 combines rural, urban, and

suburban communities.  District 30 sends tentacles nearly 20 miles out

from its core; District 6 is a tentacle, hundreds of miles long (as the

candidate walks), and it has no core.



The existence of the equally bizarre majority white District 6 makes the

plurality's discussion of District 30's odd shape largely irrelevant. 

If anything, the similarities between Districts 6 and 30 suggest that it

is more likely than not that the incumbency considerations that led to

the mutation of District 6 were the same considerations that forced

District 30 to twist and turn its way through North Dallas.{19}



The political, rather than the racial, nature of District 30's

gerrymander is even more starkly highlighted by comparing it with the

districts struck down in Shaw II and Miller.  District 30's black

population is, for instance, far more concentrated than the minority

population in North Carolina's District 12.  And in Miller, the Court

made it clear that the odd shape of Georgia's Eleventh District was the

result of a conscious effort to increase its proportion of minority

populations:  It was, the Court found, "exceedingly obvious" from the

shape of the Eleventh District, together with the racial demographics,

that the drawing of narrow land bridges to incorporate within the

District outlying appendages containing nearly 80% of the district's

total black population was a deliberate attempt to bring black

populations into the district. Miller, 515 U.S. at ___ (emphasis added,

citation omitted).



District 30 is the precise demographic converse of the district struck

down in Miller.  District 30, for example, has a compact core in South

Dallas which contains 50% of the district population and nearly 70% of

the district's total black population.  Compare ibid.  Unlike the

appendages to Georgia's District 11, the tentacles stretching north and

west from District 30 add progressively less in the way of population,

and, more important for purposes of this inquiry, they actually reduce

the proportional share of minorities in the district.  See State's Exh.

33.



For example:  The worst offender, in the trained eye of the Court, may

be the northern arm of the district that winds around the Park Cities

and then up into Collin County.  But that arm, which contains 22 percent

of the population, is only 21 percent black, ibid. -- a proportion

essentially identical to the proportion of African Americans in Dallas

County as a whole.{20}



The plurality is certainly correct in pointing out that District 30's

outlying reaches encompass some communities with high concentrations of

minorities.{21}  It is implausible to suggest, however, that an effort

to "segregate" voters drove District 30 to collect those populations. 

After all, even the District Court noted that African American voters

immediately adjacent to the core of District 30 were intentionally

excluded from the district "in order to protect incumbents."  861

F.Supp. at 1339 (emphasis added).  Forced into Republican territory to

collect Democratic votes, the district intentionally picked up some

minority communities (though far more majority white communities).  If

it had not, the goal of creating a majority black district would have

been sacrificed to incumbency protection (the very sort of

"predominance" of race over race-neutral factors that the Court

discredits).  But unlike Georgia's District 11 and North Carolina's

District 12, the reason that the district was there in the first place

was not to collect minority communities, but to collect

population-preferably Democrats.  It would, therefore, be fanciful to

assert that the "several appendages" to District 30 were "drawn for the

obvious," let alone the predominant, "purpose of putting black

populations into the district."  Miller, 515 U.S. at ___.{22}



In sum, a fair analysis of the shape of District 30, like the equally

bizarre shape of District 6, belies the notion that its shape was

determined by racial considerations. Intent



Perhaps conscious that noncompact congressional districts are the rule

rather than the exception in Texas, the plurality suggests, ante at ___,

that the real key is the direct evidence, particularly in the form of

Texas'  5 Voting Rights Act submissions and the person of then-State

Senator Johnson, that the State expressed an intent to create these

districts with a given "minimum percentage of the favored minority." 

861 F.Supp. at 1309.  Even if it were appropriate to rest this test of

dominance on an examination of the subjective motivation of individual

legislators,{23} or on testimony given in a legal proceeding designed to

prove a conflicting conclusion,{24} this information does little more

than confirm that the State believed it necessary to comply with the

Voting Rights Act.  Given its reasonable understanding of its legal

responsibilities, see supra at ___, the legislature acted to ensure that

its goal of creating a majority black district in Dallas County was not

undermined by the changes made to accommodate District 30 to other,

race-neutral districting principles.  As the plurality admits, see ante

at ___, the intent to create majority minority districts does not in

itself trigger strict scrutiny; these admissions prove nothing more than

that.  See also Shaw II, ante, at ___ (STEVENS, J., dissenting).

Nonracial Factors:  Community



In an effort to provide a definitive explanation for the odd shape of

the district, the State emphasized two factors:  the presence of

communities of interest tying together the populations of the district,

and the role of incumbency protection.  The District Court and the

plurality improperly dismissed these considerations as ultimately

irrelevant to the shape of the districts.



First, the appellants presented testimony that the districts were drawn

to align with certain communities of interest, such as land use, family

demographics, and transportation corridors.  See 861 F.Supp. at

1322-1323.  Although the District Court recognized that these community

characteristics amounted to accurate descriptions of District 30, id. at

1323, it dismissed them as irrelevant to the districting process,

concluding that there was no evidence that "the Legislature had these

particular `communities of interest' in mind when drawing the boundaries

of District 30."  Ibid.  The plurality concludes that petitioners

present no reason to displace that conclusion.  Ante at ___.



I do not understand why we should require such evidence ever to exist. 

It is entirely reasonable for the legislature to rely on the experience

of its members when drawing particular boundaries rather than on clearly

identifiable "evidence" presented by demographers and political

scientists.  Most of these representatives have been members of their

communities for years.  Unless the Court intends to interfere in state

political processes even more than it has already expressed an intent to

do, I presume that it does not intend to require States to create a

comprehensive administrative record in support of their redistricting

process.  State legislators should be able to rely on their own

experience, not only prepared reports.  To the extent that the presence

of obvious communities of interest among members of a district

explicitly or implicitly guided the shape of District 30, it amounts to

an entirely legitimate nonracial consideration.{25} Nonracial Factors: 

Incumbency



The plurality admits that the appellants "present a . . . substantial

case for their claim that incumbency protection rivalled race in

determining the district's shape."  Ante at ___.  Every individual who

participated in the redistricting process knew that incumbency

protection was a critical factor in producing the bizarre lines and, as

the plurality points out, ante at ___, even the District Court

recognized that this nearly exclusive focus on the creation of "safe"

districts for incumbents was intimately related to the bizarre shape of

district lines throughout the State. [I]n Texas in 1991, many incumbent

protection boundaries sabotaged traditional redistricting principles as

they routinely divided counties, cities, neighborhoods, and regions. 

For the sake of maintaining or winning seats in the House of

Representatives, Congressmen or would-be Congressmen shed hostile groups

and potential opponents by fencing them out of their districts.  The

Legislature obligingly carved out districts of apparent supporters of

incumbents, . . . and then added appendages to connect their residences

to those districts.  The final result seems not one in which the people

select their representatives, but in which the representatives have

selected the people. 861 F.Supp. at 1334 (citations and footnotes

omitted).  See also id. at 1335, n. 43.  Despite this overwhelming

evidence that incumbency protection was the critical motivating factor

in the creation of the bizarre Texas districts, the District Court

reached the stunning conclusion that because the process was so

"different in degree" from the "generalized, and legitimate, goal of

incumbent and seniority protection" that this Court has previously

recognized, it could not serve as a legitimate explanation for the

bizarre boundaries of the congressional districts.  Id. at 1334-1335. 

In dismissing incumbency protection once and for all, the District Court

stated that "[i]ncumbent protection is a valid state interest only to

the extent that it is not a pretext for unconstitutional racial

gerrymandering."  Id. at 1336.



It is difficult to know where to begin to attack the misperceptions

reflected in these conclusions,{26} and the plurality's failure to do so

seriously taints its evaluation of the relative importance of nonracial

considerations in the creation of District 30.  The initial problem, of

course, is that under the Court's threshold test as set forth in Miller,

one must consider the role of incumbency protection before determining

whether there is an "unconstitutional racial gerrymander."  And because

the ultimate focus in these gerrymandering cases is the claim that race

was the "dominant and controlling rationale in drawing [the] district

lines," 515 U.S. at ___, a court must, in applying that test, consider a

State's claim that a given race-neutral rationale controlled the

creation of those lines.  See id. at ___ ("Where [compactness,

contiguity,] or other race-neutral considerations are the basis for

redistricting legislation, and are not subordinated to race, a State can

`defeat a claim that a district has been gerrymandered on racial

lines'").  Although a court may not like the State's explanation, that

is no excuse for ignoring it.



If some independent bar prevented the use of that race-neutral

criterion, then the District Court might be in a position to object to

the State's use of it.  We have, however, affirmed that a State has an

interest in incumbency protection, see, e.g., ante at ___ (opinion of

O'CONNOR, J.); White v. Weiser, 412 U.S. 783, 791, 797 (1973), and also

assured States that the Constitution does not require compactness,

contiguity, or respect for political borders, see Shaw I, 509 U.S. at

647.  While egregious political gerrymandering may not be particularly

praiseworthy, see infra at ___, it may nonetheless provide the

race-neutral explanation necessary for a State to avoid strict scrutiny

of the district lines where gerrymandering is the "dominant and

controlling" explanation for the odd district shapes.{27}



The District Court's error had an apparently dispositive effect on its

assessment of whether strict scrutiny should apply at all.  Although

aspects of our dispute with the plurality are "largely factual," ante at

17, n. *, they arise not out of our disagreement with the District

Court's credibility assessments, but out of that court's erroneous

conclusion that the state's overwhelming reliance on this race-neutral

factor was illegitimate and irrelevant to its evaluation of the factors

involved in the shifting of this District's lines.  A fair evaluation of

the record made in light of appropriate legal standards requires a

conclusion very different from the District Court's.  By following the

District Court down its misdirected path, the Court itself goes astray.

Race as a Proxy



Faced with all this evidence that politics, not race, was the

predominant factor shaping the district lines, the plurality ultimately

makes little effort to contradict appellants' assertions that incumbency

protection was far more important in the placement of District 30's

lines than race.  See ante at ___.  Instead, it adopts a fall-back

position based on an argument far removed from even the "analytically

distinct" claim set forth in Shaw I, 509 U.S. at 652.  In it, the Court

suggests that even if the predominant reason for the bizarre features of

the majority minority districts was incumbency protection, the State

impermissibly used race as a proxy for determining the likely political

affiliation of blocks of voters.  See ante at ___ (opinion of O'CONNOR,

J.).



The effect of this process, in all likelihood, was relatively

unimportant to the overall shape of the district.  A comparison of the

1992 precinct results with a depiction of the proportion of black

population in each census block reveals that Democratic-leaning

precincts cover a far greater area than majority black census blocks. 

Compare State's Exh. 9A with State's Exh. 45.  One would expect the

opposite effect if the single-minded goal of those drawing the districts

was racial composition rather than political affiliation.  At the very

least, the maps suggest that the drawing of boundaries involves a

demographic calculus far more complex than simple racial stereotyping.



Furthermore, to the extent that race served as a proxy at all, it did so

merely as a means of "fine tuning" borders that were already in

particular locations for primarily political reasons.  This "fine

tuning" through the use of race is, of course, little different from the

kind of fine tuning that could have legitimately occurred around the

edges of a compact majority minority district.{28}  I perceive no reason

why a legitimate process -- choosing minority voters for inclusion in a

majority minority district -- should become suspect once nonracial

considerations force district lines away from its core.



Finally, I note that in most contexts racial classifications are

invidious because they are irrational.  For example, it is irrational to

assume that a person is not qualified to vote or to serve as a juror

simply because she has brown hair or brown skin.  It is neither

irrational, nor invidious, however, to assume that a black resident of a

particular community is a Democrat if reliable statistical evidence

discloses that 97% of the blacks in that community vote in Democratic

primary elections.  See Brief for United States 44.  For that reason,

the fact that the architects of the Texas plan sometimes appear to have

used racial data as a proxy for making political judgments seems to me

to be no more "unjustified," ante at ___ (opinion of O'CONNOR, J.), and

to have no more constitutional significance, than an assumption that

wealthy suburbanites, whether black or white, are more likely to be

Republicans than communists.{29}  Requiring the State to ignore the

association between race and party affiliation would be no more logical,

and potentially as harmful, as it would be to prohibit the Public Health

Service from targeting African American communities in an effort to

increase awareness regarding sickle-cell anemia.{30}



Despite all the efforts by the plurality and the District Court, then,

the evidence demonstrates that race was not, in all likelihood, the

"predominant" goal leading to the creation of District 30.  The most

reasonable interpretation of the record evidence instead demonstrates

that political considerations were.  In accord with the presumption

against interference with a legislature's consideration of complex and

competing factors, see n. 9, supra, I would conclude that the

configuration of District 30 does not require strict scrutiny. V



The Houston districts present a closer question on the application of

strict scrutiny.  There is evidence that many of the same race-neutral

factors motivating the zigzags of District 30 were present at the

creation (or recreation) of Districts 29 and 18.  In contrast to

District 30, however, there is also evidence that the interlocking

shapes of the Houston districts were specifically, and almost

exclusively, the result of an effort to create, out of largely

integrated communities, both a majority black and a majority Hispanic

district.  For purposes of this opinion, then, I am willing to accept

arguendo the Court's conclusion that the Houston districts should be

examined with strict scrutiny.{31}  Even so, the Court errs by

concluding that these districts would fail that test.



The plurality begins with the perfectly obvious assumptions that a State

has a compelling interest in complying with  2 of the Voting Rights Act

and that Texas had a strong basis for believing that it would have

violated that Act in 1991 if it did not create three new majority

minority districts.{32}  The plurality goes on to conclude, however,

that because the final shape of these districts is not coextensive with

the community that would form the core of a  2 violation, these

districts would not be "narrowly tailored" to further that state

interest.  Ante at ___.  I respectfully disagree.



Neither evidence nor insinuation suggests that the State in the

redistricting process considered race for any reason other than as a

means of accomplishing its compelling interest of creating majority

minority districts in accord with the Voting Rights Act.  The goal was,

by all accounts, achieved, for these districts would certainly avoid

liability under  2 of the Voting Rights Act.{33}  For reasons that

continue to escape me, however, the Court simply insists that the lack

of compactness in the districts prevent them from being "narrowly

tailored" solutions to the State's interests.



The Court uses two premises to reach its conclusion that compactness is

required to meet the "narrow tailoring" requirement:  (i)  2 would not

have been violated unless a reasonably compact majority minority

district could have been created; and, (ii) nothing in  2 requires the

creation of a noncompact district.  I have no quarrel with either

proposition, but each falls far short of mandating the conclusion that

the Court draws from it.  While a State can be liable for a  2 violation

only if it could have drawn a compact district and failed to do so, it

does not follow that creating such a district is the only way to avoid a

 2 violation.  See generally Shaw II, ante at ___ (STEVENS, J.,

dissenting).  The plurality admits that a State retains "a limited

degree of leeway" in drawing a district to alleviate fears of  2

liability, ante at 23, but if there is no independent constitutional

duty to create compact districts in the first place, and the Court

suggests none, there is no reason why noncompact districts should not be

a permissible method of avoiding violations of law.  The fact that they

might be unacceptable judicial remedies does not speak to the question

whether they may be acceptable when adopted by a state legislature. 

Because these districts satisfy the State's compelling interest and do

so in a manner that uses racial considerations only in a way reasonably

designed to ensure such a satisfaction, I conclude that the Districts

are narrowly tailored. VI



I cannot profess to know how the Court's developing jurisprudence of

racial gerrymandering will alter the political and racial landscape in

this Nation-although it certainly will alter that landscape.  As the

Court's law in this area has developed, it has become ever more apparent

to me that the Court's approach to these cases creates certain perverse

incentives and (I presume) unanticipated effects that serve to highlight

the essentially unknown territory into which it strides.  Because I

believe that the social and political risks created by the Court's

decisions are not required by the Constitution, my first choice would be

to avoid the preceding analysis altogether, and leave these

considerations to the political branches of our Government.



The first unintended outcome of the legal reasoning in Shaw II and Bush

is the very result that those decisions seek to avoid:  The predominance

of race in the districting process, over all other principles of

importance.  Given the Court's unwillingness to recognize the role that

race-neutral districting principles played in the creation of the

bizarrely shaped districts in both this case and Shaw II, it now seems

clear that the only way that a State can both create a majority minority

district and avoid a racial gerrymander is by drawing, "without much

conscious thought," ante at ___ (opinion of O'CONNOR, J.), and within

the "limited degree of leeway" granted by the Court, id. at ___, the

precise compact district that a court would impose in a successful  2

challenge.  See post at ___ (SOUTER, J., dissenting).  After the Court's

decisions today, therefore, minority voters can make up a majority only

in compact districts, whether intentionally or accidentally drawn, while

white voters can be placed into districts as bizarre as the State

desires.



The great irony, of course, is that by requiring the State to place the

majority minority district in a particular place and with a particular

shape, the district may stand out as a stark, placid island in a sea of

oddly shaped majority white neighbors.  See Karlan, Still Hazy After All

These Years:  Voting Rights in the Post-Shaw Era, 26 Cumberland L.Rev.

287, 309 (1995-1996).  The inviolable sanctity of the  2-eligible

districts will signal in a manner more blatant than the most egregious

of these racial gerrymanders that "a minority community sits here: 

Interfere with it not."  The Court-imposed barriers limiting the shape

of the district will interfere more directly with the ability of

minority voters to participate in the political process than did the

oddly shaped districts that the Court has struck down in recent cases. 

Unaffected by the new racial jurisprudence, majority white communities

will be able to participate in the districting process by requesting

that they be placed into certain districts, divided between districts in

an effort to maximize representation, or grouped with more distant

communities that might nonetheless match their interests better than

communities next door.  By contrast, none of this political maneuvering

will be permissible for majority minority districts, thereby segregating

and balkanizing them far more effectively than the Districts at issue

here, in which they were manipulated in the political process as easily

as white voters.  This result, it seems to me, involves "discrimination"

in a far more concrete manner than did the odd shapes that so offended

the Court's sensibilities in Miller, Shaw II, and Bush.



In light of this Court's recent work extolling the importance of state

sovereignty in our federal scheme, cf. Seminole Tribe of Fla. v.

Florida, 517 U.S. ___ (1996), I would have expected the Court's

sensibilities to steer a course rather more deferential to the States

than the one that it charts with its decisions today.  As we have

previously noted, "[e]lectoral districting is a most difficult subject

for legislatures, and so the States must have discretion to exercise the

political judgment necessary to balance competing interests."  Miller,

515 U.S. at ___; see also post at ___ (SOUTER, J., dissenting).  The

record in this case evidences the "complex interplay of forces that

enter a legislature's redistricting calculus," ibid. and the Court's

failure to respect those forces demonstrates even less respect for the

legislative process than I would have expected after the decision in

Miller.



The results are not inconsequential.  After Miller and today's

decisions, States may find it extremely difficult to avoid litigation

flowing from decennial redistricting.  On one hand, States will risk

violating the Voting Rights Act if they fail to create majority minority

districts.  If they create those districts, however, they may open

themselves to liability under Shaw and its progeny.  See Miller, 515

U.S. at ___ (GINSBURG, J., dissenting).  Perhaps States will simply

avoid the problem by abandoning voluntary compliance with  2 of the

Voting Rights Act altogether.  See Shaw I, 509 U.S. at ___ (White, J.,

dissenting); post at ___ (SOUTER, J., dissenting).{34}  This result

would not necessarily bring peace to redistricting, for there is no

guarantee that districts created by court order to comply with  2 will

be immune from attack under Shaw; in both Florida and Illinois, for

instance, that very sort of schizophrenic second-guessing has already

occurred.  See King v. State Bd. of Elections, No. 95-C-827, 1996 WL

130439 (ND Ill., Mar. 15, 1996); Johnson v. Mortham, No. 94-40025, 1996

WL 189235 (ND Fla., Apr. 17, 1996).  Given the difficulty of reconciling

these competing legal responsibilities, the political realities of

redistricting, and the cost of ongoing litigation, some States may

simply step out of the redistricting business altogether, citing either

frustration or hopes of getting a federal court to resolve the issues

definitively in a single proceeding.  See, e.g., Johnson v. Miller, No.

CV 94-008, 1995 WL 783038, *1 (SD Ga., Dec. 13, 1995) (after remand from

Miller, Georgia legislature abdicated its redistricting responsibilities

to federal district court); post at ___ (SOUTER, J., dissenting) (noting

the likely "vacuum of responsibility at the state level").



Regardless of the route taken by the States, the Court has guaranteed

that federal courts will have a hand -- and perhaps the only hand -- in

the "abrasive task of drawing district lines."  Wells v. Rockefeller,

394 U.S. 542, 553 (1969) (White, J., dissenting).  Given the uniquely

political nature of the redistricting process, I fear the impact this

new role will have on the public's perception of the impartiality of the

federal judiciary.  I can only reiterate the Court's cautionary

admonition, issued over two decades ago, that, [i]n fashioning a

reapportionment plan or in choosing among plans, a district court should

not preempt the legislative task nor "intrude upon state policy any more

than necessary." White v. Weiser, 412 U.S. at 795 (citing Whitcomb v.

Chavis, 403 U.S. 124, 160 (1971)).



I do not wish to leave the impression that decisions of the Court from

Shaw I to the present are focusing on entirely nonexistent problems.  I

merely believe that the Court has entirely misapprehended the nature of

the harm that flows from this sort of gerrymandering.  Rather than

attach blameworthiness to a decision by the majority to share political

power with the victims of past discriminatory practices, the Court's

real concern should be with the more significant harms that flow from

legislative decisions that "serve no purpose other than to favor one

segment -- whether racial, ethnic, religious, economic, or political --

that may occupy a position of strength at a particular point in time, or

to disadvantage a politically weak segment of the community."  Karcher

v. Daggett, 462 U.S. 725, 748 (1983) (STEVENS, J., concurring).  This

case is as good an illustration of such self-serving behavior on the

part of legislators as any-but not with respect to racial

gerrymandering.  The real problem is the politically motivated

gerrymandering that occurred in Texas.  Many of the oddest twists and

turns of the Texas districts would never have been created if the

Legislature had not been so intent on protecting party and incumbents. 

See also Shaw II, ante, at ___ (STEVENS, J., dissenting) (noting the

same influences behind the bizarre shape of North Carolina's District

12).



By minimizing the critical role that political motives played in the

creation of these districts, I fear that the Court may inadvertently

encourage this more objectionable use of power in the redistricting

process.{35}  Legislatures and elected representatives have a

responsibility to behave in a way that incorporates the "elements of

legitimacy and neutrality that must always characterize the performance

of the sovereign's duty to govern impartially."  Cleburne, 473 U.S. at

452.  That responsibility is not discharged when legislatures permit and

even encourage incumbents to use their positions as public servants to

protect themselves and their parties rather than the interests of their

constituents.  See Karcher v. Daggett, 462 U.S. at 748, 754 (STEVENS,

J., concurring).  If any lines in Texas are worth straightening, it is

those that were twisted to exclude, not those altered to include.{36}

VII



The history of race relations in Texas and throughout the South

demonstrates overt evidence of discriminatory voting practices lasting

through the 1970's.  Brischetto, Richards, Davidson, & Grofman, Texas,

in Quiet Revolution in the South:  The Impact of the Voting Rights Act,

1965-1990, pp. 233-248 (C. Davidson & B. Grofman eds. 1994).  Even in

recent years, Texans have elected only two black candidates to statewide

office; majority white Texas districts have never elected a minority to

either the State Senate or the United States Congress.  Brief for

Petitioners in No. 94-806, p. 53.  One recent study suggests that

majority white districts throughout the South remain suspiciously

unlikely to elect black representatives.  Davidson & Grofman, The Effect

of Municipal Election Structure on Black Representation in Eight

Southern States, in Quiet Revolution in the South at 344.  And

nationwide, fewer than 15 of the hundreds of legislators that have

passed through Congress since 1950 have been black legislators elected

from majority white districts.{37}  In 1994, for example, 36 of the

Nation's 39 black Representatives were elected from majority-minority

districts, while only three were elected from majority white

districts.{38}  See post at ___,  (SOUTER, J., dissenting).



Perhaps the state of race relations in Texas and, for that matter, the

Nation, is more optimistic than might be expected in light of these

facts.  If so, it may be that the plurality's exercise in redistricting

will be successful.  Perhaps minority candidates, forced to run in

majority white districts, will be able to overcome the long history of

stereotyping and discrimination that has heretofore led the vast

majority of majority white districts to reject minority candidacies. 

Perhaps not.  I am certain only that bodies of elected federal and state

officials are in a far better position than anyone on this Court to

assess whether the Nation's long history of discrimination has been

overcome, and that nothing in the Constitution requires this unnecessary

intrusion into the ability of States to negotiate solutions to political

differences while providing long-excluded groups the opportunity to

participate effectively in the democratic process.  I respectfully

dissent. `94-805, 94-806 & 94-988 SOUTER, J., dissenting



JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join,

dissenting.



When the Court devises a new cause of action to enforce a constitutional

provision, it ought to identify an injury distinguishable from the

consequences of concededly constitutional conduct, and it should

describe the elements necessary and sufficient to make out such a claim.

 Nothing less can give notice to those whose conduct may give rise to

liability or provide standards for courts charged with enforcing the

Constitution.  Those principles of justification, fair notice, and

guidance, have never been satisfied in the instance of the action

announced three Terms ago in Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I),

when a majority of this Court decided that a State violates the

Fourteenth Amendment's Equal Protection Clause by excessive

consideration of race in drawing the boundaries of voting districts,

even when the resulting plan does not dilute the voting strength of any

voters and so would not otherwise give rise to liability under the

Fourteenth or Fifteenth Amendments, or under the Voting Rights Act.



Far from addressing any injury to members of a class subjected to

differential treatment, the standard presupposition of an equal

protection violation, Shaw I addressed a putative harm subject to

complaint by any voter objecting to an untoward consideration of race in

the political process.  Although the Court has repeatedly disclaimed any

intent to go as far as to outlaw all conscious consideration of race in

districting, after three rounds of appellate litigation seeking to

describe the elements and define the contours of the Shaw cause of

action, a helpful statement of a Shaw claim still eludes this Court. 

This is so for reasons that go to the conceptual bone.



The result of this failure to provide a practical standard for

distinguishing between the lawful and unlawful use of race has not only

been inevitable confusion in state houses and courthouses, but a

consequent shift in responsibility for setting district boundaries from

the state legislatures, which are invested with front-line authority by

Article I of the Constitution, to the courts, and truly to this Court,

which is left to superintend the drawing of every legislative district

in the land.



Today's opinions do little to solve Shaw's puzzles or return districting

responsibility to the States.  To say this is not to denigrate the

importance of JUSTICE O'CONNOR's position in her separate opinion, ante

at ___, that compliance with  2 of the Voting Rights Act is a compelling

state interest; her statement takes a very significant step toward

alleviating apprehension that Shaw is at odds with the Voting Rights

Act.  It is still true, however, that the combined plurality, minority,

and Court opinions do not ultimately leave the law dealing with a Shaw

claim appreciably clearer or more manageable than Shaw I itself did. 

And to the extent that some clarity follows from the knowledge that race

may be considered when reasonably necessary to conform to the Voting

Rights Act, today's opinions raise the specter that this ostensible

progress may come with a heavy constitutional price.  The price of Shaw

I, indeed, may turn out to be the practical elimination of a State's

discretion to apply traditional districting principles, widely accepted

in States without racial districting issues as well as in States

confronting them.



As the flaws of Shaw I persist, and as the burdens placed on the States

and the courts by Shaw litigation loom larger with the approach of a new

census and a new round of redistricting, the Court has to recognize that

Shaw's problems result from a basic misconception about the relation

between race and districting principles, a mistake that no amount of

case-by-case tinkering can eliminate.  There is, therefore, no reason

for confidence that the Court will eventually bring much order out of

the confusion created by Shaw I, and because it has not, in any case,

done so yet, I respectfully dissent. I



As its text indicates and our cases have necessarily and repeatedly

recognized, Article I of the Constitution places responsibility for

drawing voting districts on the States in the first instance.  See Art.

I,  2, cl. 1 ("The House of Representatives shall be composed of Members

chosen every second Year by the People of the several States, and the

Electors in each State shall have the Qualifications requisite for

Electors of the most numerous Branch of the State Legislature"); Art. I,

 4, cl. 1 ("The Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in each State by the

Legislature thereof; but the Congress may at any time by Law make or

alter such Regulations").  The Court has nonetheless recognized limits

on state districting autonomy when it could discern a strong

constitutional justification and a reasonably definite standard for

doing so, as, for example, in announcing the numerical requirement of

one person, one vote, see Reynolds v. Sims, 377 U.S. 533 (1964).  But

the Court has never ignored the Constitution's commitment of districting

responsibility to the political branches of the States and has

accordingly assumed over the years that traditional districting

principles widely accepted among States represented an informal baseline

of acceptable districting practices.  We have thus accorded substantial

respect to such traditional principles (as those, for example, meant to

preserve the integrity of neighborhood communities, to protect

incumbents, to follow existing political boundaries, to recognize

communities of interest, and to achieve compactness and contiguity); we

have seen these objectives as entirely consistent with the Fourteenth

and Fifteenth Amendments' demands.  See, e.g., id. at 578 ("A State may

legitimately desire to maintain the integrity of various political

subdivisions, insofar as possible, and provide for compact districts of

contiguous territory in designing a legislative apportionment scheme");

White v. Weiser, 412 U.S. 783, 797 (1973) ("[T]he District Court did not

suggest or hold that the legislative policy of districting so as to

preserve the constituencies of congressional incumbents was

unconstitutional or even undesirable"); Voinovich v. Quilter, 507 U.S.

146, 156 (1993) ("Because the States . . . derive their reapportionment

authority . . . from independent provisions of state and federal law,

the federal courts are bound to respect the States' apportionment

choices unless those choices contravene federal requirements") (internal

quotation marks omitted; citation omitted).



The fundamental tenet underlying most of these constitutionally

unobjectionable principles (respect for communities of interest or

neighborhoods, say) is that voting is more than an atomistic exercise. 

Although it is the law of the Constitution that representatives

represent people, not places or things or particular interests,

Reynolds, supra at 562, the notion of representative democracy within

the federalist framework presumes that States may group individual

voters together in a way that will let them choose a representative not

only acceptable to individuals but ready to represent widely shared

interests within a district.  Aleinikoff & Issacharoff, Race and

Redistricting:  Drawing Constitutional Lines After Shaw v. Reno, 92

Mich.L.Rev. 588, 601 (1993) ("It is only as collective partisans of the

same political preference -- whether that preference is defined by party

or race or any other measure -- that voters can assert their right to

meaningful participation in the political process").  Hence, in

respecting the States' implementation of their own, traditional

districting criteria, the Court has recognized the basically

associational character of voting rights in a representative democracy.

A



Accordingly, before Shaw I, the Court required evidence of substantial

harm to an identifiable group of voters to justify any judicial

displacement of these traditional districting principles.  Such evidence

existed in Reynolds v. Sims, 377 U.S. 533 (1964), when the disparate

weighting of votes was held unconstitutional, and it was present again

when the Court recognized the unconstitutional consequences of vote

dilution, see Whitcomb v. Chavis, 403 U.S. 124 (1971); White v.

Regester, 412 U.S. 755 (1973).  In the one case, the harm was

mathematically identifiable; in the other, the arithmetic provided

powerful circumstantial evidence of the impossibility of political

success for the chosen candidate of a racial and numerical minority in

an area with pervasive racial bloc voting.  In both cases, the

complainants were from an easily identified group of voters; and even in

cases of racial vote dilution claims, which were conceptually more

difficult to state than the principle of one person, one vote, there

were readily recognized examples of the harm in question.  Indeed, even

when one acknowledged that voters would be served by a representative

not of their own race and that the Constitution guaranteed no right to

pick a winner, see Whitcomb, supra at  it was impossible to see mere

happenstance in the facts that the American voting-age population was

10.5% black, but the Congress that assembled in 1981 had only 17 black

representatives out of 435 and no black senator.  Statistical Abstract

of the United States, 1982-83, p. 490 (103d ed. 1982) (Table 802); Black

Americans:  A Statistical Sourcebook 142 (L. Hornor ed. 1995) (Table

4.02); see also Parker, The Damaging Consequences of the Rehnquist

Court's Commitment to Color Blindness Versus Racial Justice, 45

Am.U.L.Rev. 763, 770-771 (1996) (observing that "[p]rior to the latest

round of redistricting after the 1990 Census . . . [b]lacks, who

constitute 11.1% of the nation's voting age population, made up only

4.9% of the members of Congress").  The conclusion was inescapable that

what we know of as intentional vote dilution accounted for this

astonishing fact, just as it is equally inescapable that remedies for

vote dilution (and hedges against its reappearance) in the form of

majority minority districts account for the fact that the 104th Congress

showed an increase of 39 black members over the 1981 total.  Minorities

in Congress, 52 Cong.Q., Supplement to No. 44, p. 10 (Nov. 12, 1994);

see also Parker, supra at 771 (noting "a fifty percent increase in the

number of black members of Congress").



Before Shaw I, we not only thus limited judicial interference with state

districting efforts to cases of readily demonstrable harm to an

identifiable class of voters, but we also confined our concern with

districting to cases in which we were capable of providing a manageable

standard for courts to apply and for legislators to follow.  Within two

years of holding in Baker v. Carr, 369 U.S. 186 (1962), that

malapportionment was a justiciable issue, the Court recognized that its

general equal protection jurisprudence was insufficient for the task and

announced an increasingly rigid, simple to apply, voting-specific

mandate of equipopulousity. Karlan, Still Hazy After All These Years: 

Voting Rights in the Post-Shaw Era, 26 Cumberland L.Rev. 287, 299 (1996)

(Karlan, Post-Shaw Era).  Likewise, although it is quite true that the

common definition of a racial vote-dilution injury ("less opportunity .

. . to participate in the political process and to elect representatives

. . . ," 42 U.S.C.  1973(b)), is no model of concrete description, the

Court has identified categories of readily comprehensible evidence

bearing on the likelihood of such an injury, including facts about size

of minority population, quantifiable indications of political

cohesiveness and bloc voting, historical patterns of success or failure

of favored candidates, and so on.  See, e.g., Thornburg v. Gingles, 478

U.S. 30 (1986); White v. Regester, 412 U.S. at   The particularity of

this evidence goes far to separate victims of political "inequality"

from those who just happened to support losing candidates. B



Shaw I, however, broke abruptly with these standards, including the very

understanding of equal protection as a practical guarantee against harm

to some class singled out for disparate treatment.  Whereas

malapportionment measurably reduces the influence of voters in more

populous districts, and vote dilution predestines members of a racial

minority to perpetual frustration as political losers, what Shaw I spoke

of as harm is not confined to any identifiable class singled out for

disadvantage.  See Shaw II, ante, at ___ (STEVENS, J., dissenting)

(noting the absence of a customary disadvantaged class and describing

the Shaw I cause of action as a substantive due process, rather than an

equal protection, claim).  If, indeed, what Shaw I calls harm is

identifiable at all in a practical sense, it would seem to play no

favorites, but to fall on every citizen and every representative alike. 

The Court in Shaw I explained this conception of injury by saying that

the forbidden use of race reinforces the perception that members of the

same racial group . . . think alike, share the same political interests,

and will prefer the same candidates at the polls, and that it leads

elected officials "to believe that their primary obligation is to

represent only the members of that group, rather than their constituency

as a whole."  Shaw I, 509 U.S. at   This injury is probably best

understood as an "expressive harm," that is, one that "results from the

idea or attitudes expressed through a governmental action, rather than

from the more tangible or material consequences the action brings

about."  Pildes & Niemi, Expressive Harms, "Bizarre Districts," and

Voting Rights:  Evaluating Election District Appearances after Shaw v.

Reno, 92 Mich.L.Rev. 483, 506-507 (1993); see also id. at 493 ("The

theory of voting rights [that Shaw I] endorses centers on the perceived

legitimacy of structures of political representation, rather than on the

distribution of actual political power between racial or political

groups").  To the extent that racial considerations do express such

notions, their shadows fall on majorities as well as minorities, whites

as well as blacks, the politically dominant as well as the politically

impotent.  Thus, as an injury supposed to be barred by the Equal

Protection Clause, this subject of the "analytically distinct" cause of

action created by Shaw I, supra at 652, bears virtually no resemblance

to the only types of claims for gerrymandering we had deemed actionable

following Davis v. Bandemer, 478 U.S. 109 (1986), those involving

districting decisions that removed an identifiable class of disfavored

voters from effective political participation.  See, e.g., Gomillion v.

Lightfoot, 364 U.S. 339 (1960); Thornburg v. Gingles, 478 U.S. 30

(1986).



Just as the logic of traditional equal protection analysis is at odds

with Shaw's concept of injury, so the Court's rhetoric of racially

motivated injury is inapposite to describe the consideration of race

that it thinks unreasonable.  Although the Court used the metaphor of

"political apartheid" as if to refer to the segregation of a minority

group to eliminate its association with a majority that opposed

integration, Shaw I, supra at 647, talk of this sort of racial

separation is not on point here.  The de jure segregation that the term

"political apartheid" brings to mind is unconstitutional because it

emphatically implies the inferiority of one race.  See Brown v. Board of

Education, 347 U.S. 483, 494 (1954) ("[t]o separate [minority children]

from others of similar age and qualifications solely because of their

race generates a feeling of inferiority as to their status in the

community").  Shaw I, in contrast, vindicated the complaint of a white

voter who objected not to segregation but to the particular racial

proportions of the district.  See Karlan, Our Separatism?  Voting Rights

as an American Nationalities Policy, 1995 U.Chi.Legal Forum 83, 94

(hereinafter Karlan, Our Separatism) (noting the irony that the term

"apartheid" is used to describe what are "among the most integrated

districts in the country").  Whatever this district may have symbolized,

it was not "apartheid."  Nor did the proportion of its racial mixture

reflect any purpose of racial subjugation, the district in question

having been created in an effort to give a racial minority the same

opportunity to achieve a measure of political power that voters in

general, and white voters and members of ethnic minorities in

particular, have enjoyed as a matter of course.  In light of a majority

minority district's purpose to allow previously submerged members of

racial minorities into the active political process, this use of race

cannot plausibly be said to affect any individual or group in any sense

comparable to the injury inflicted by de jure segregation.  It obviously

conveys no message about the inferiority or outsider status of members

of the white majority excluded from a district.  And because the

condition addressed by creating such a district is a function of

numbers, the plan implies nothing about the capacity or value of the

minority to which it gives the chance of electoral success.



Added to the anomalies of Shaw I's idea of equal protection injury and

the rhetoric of its descriptions, there is a further conceptual

inadequacy in Shaw I.  Whereas it defines injury as the reinforcement of

the notion that members of a racial group will prefer the same

candidates at the polls, the immediate object of the constitutional

prohibition against the intentional dilution of minority voting strength

is to protect the right of minority voters to make just such a

preference effective.  There would, for example, be no vote dilution by

virtue of racial bloc voting unless voters of a racial minority would

themselves tend to stick together in voting for a given candidate

(perhaps, though not necessarily, of their own race, as well).  Indeed,

if there were no correlation between race and candidate preference, it

would make no sense to say that minority voters had less opportunity

than others to elect whom they would; they would be part of the

mainstream and the winners would be their own choices.  When voting is

thus racially polarized, it is just because of this polarization that

majority minority districts provide the only practical means of avoiding

dilution or remedying the dilution injury that has occurred already. 

Shaw I has thus placed those who choose to avoid the long-recognized

constitutional harm of vote dilution at risk by casting doubt on the

legitimacy of its classic remedy; the creation of a majority minority

district "reinforces" the notion that there is a correlation between

race and voting, for that correlation is the very condition on which the

success of the court-ordered remedy depends.  So it is that the Court's

definition of injury is so broad as to cover constitutionally necessary

efforts to prevent or remedy a violation of the Fourteenth and Fifteenth

Amendments and of  2 of the Voting Rights Act.



One way to temper the overreach of the Court's concept of injury (though

it would not avoid the difficulty that there is no equal protection

injury in the usual sense, discussed above, see supra at ___) would be

simply to exclude by definition from Shaw I injury a use of race in

districting that is reasonably necessary to remedy or avoid dilution;

the Court's move at least in this direction, see infra at ___, is a

sound one, as is its continuing recognition (despite its broad

definition of harm) that not every intentional creation of a majority

minority district requires strict scrutiny. See ante at ___; ante at ___

(O'CONNOR, J., concurring); cf. Miller, 515 U.S. at ___ (O'CONNOR, J.,

concurring).  But the suggested qualification would fall short of

eliminating the difficulty caused by the existing definition, for the

uses of race to remedy past dilution or to hedge against future dilution

are not the only legitimate uses of race that are covered, and

threatened, by the overbreadth of the Shaw injury.  This will become

clear in examining the Court's efforts to solve its definitional

problems by relying upon the degree to which race is used in defining

the injury it discerns. C



The Court's failure to devise a concept of Shaw harm that distinguishes

those who are injured from those who are not, or to differentiate

violation from remedy, is matched by its inability to provide any

manageable standard to distinguish forbidden districting conduct from

the application of traditional state districting principles and the

plans that they produce.  This failure, while regrettable, need not have

occurred, for when the Court spoke in Shaw I of a district shape so

"bizarre" as to be an unequivocal indication that race had influenced

the districting decision to an unreasonable degree, Shaw I could have

been pointing to some workable criterion of shape translatable into

objective standards.  Leaving Shaw's theoretical inadequacies aside, it

would have been possible to devise a cause of action that rested on the

expressive character of a district's shape, and created a safe harbor in

the notion of a compact district objectively quantified in terms of

dispersion, perimeter, and population.  See Pildes & Niemi, 92

Mich.L.Rev. at 553-575.  Had the Court followed this course, the

districts whose grotesque shapes provoke the sharpest reaction would

have been eliminated in racially mixed States, which would have known

how to avoid Shaw violations and, thus, federal judicial intrusion. 

Shaw would have been left a doctrinal incongruity, but not an

unmanageable one.



The Court, however, rejected this opportunity last Term in Miller v.

Johnson, supra, when it declined to contain Shaw by any standard

sufficiently quantifiable to guide the decisions of state legislators or

to inform and limit review of districting decisions by the courts.  The

Court rejected shape as a sufficient condition for finding a Shaw

violation, or even a necessary one.  515 U.S. at ___.  See also

Issacharoff, The Constitutional Contours of Race and Politics, 1995

S.Ct.Rev. 45, 56 ("Miller is rather categorical in its refusal to limit

the application of the equal protection clause to bizarre districts

alone") (Issacharoff, Constitutional Contours).  Instead, it

recharacterized the cause of action in terms devised in other cases

addressing essentially different problems, by proscribing the

consideration of race when it is the "predominant factor motivating the

legislatur[e]," 515 U.S. at ___, or when the use of race is "in

substantial disregard of customary and traditional districting

practices," id. at ___ (O'CONNOR, J., concurring).



As a standard addressed to the untidy world of politics, neither

"predominant factor" nor "substantial disregard" inspires much hope.  It

is true of course that the law rests certain other liability decisions

on the feasibility of untangling mixed motives, and courts and juries

manage to do the untangling.  See, e.g., Mt. Healthy City Bd. of Ed. v.

Doyle, 429 U.S. 274, 287 (1977) (employee's burden to show that

constitutionally protected conduct is a "substantial factor" in decision

not to rehire him; employer's burden to show that it would have made

same decision "even in the absence of the protected conduct"); Hunter v.

Underwood, 471 U.S. 222, 228 (1985) ("Once racial discrimination is

shown to have been a `substantial' or `motivating' factor behind the

enactment of the law, the burden shifts to the law's defenders to

demonstrate that the law would have been enacted without this factor");

but see Arlington Heights v. Metropolitan Housing Development Corp., 429

U.S. 252, 265 (1977) ("Rarely can it be said that a legislature or

administrative body operating under a broad mandate made a decision

motivated solely by a single concern, or even that a particular purpose

was the `dominant' or `primary' one").  At first glance, then, it may

not seem entirely out of the question for courts to sort out the strands

in Shaw cases.  But even this cool comfort would be misplaced.



While a court may be entitled to some confidence that in most cases it

will be able, for example, to distinguish the relative strength of an

employer's dissatisfaction with an employee's job performance from his

displeasure over a worker's union membership, see NLRB v. Transportation

Management Corp., 462 U.S. 393, (1983), such confidence would be

unwarranted in the districting context.  It is not merely that the very

nature of districting decisions makes it difficult to identify whether

any particular consideration, racial or otherwise, was the "predominant

motive," though that is certainly true: Districting plans are integrated

bundles of compromises, deals and principles.  To ask about the reason

behind the design of any one particular district is typically to

implicate the entire pattern of purposes and trade-offs behind a

districting plan as a whole.  Searching for "the reason" or "the

dominant reason" behind a particular district's shape is often like

asking why one year's federal budget is at one level rather than

another.  Moreover, to require a coherent explanation for the specific

shape of even one district is to impose a model of legalistic

decisionmaking on the one political process that least resembles that

model. Pildes & Niemi, supra at 585-586 (footnote omitted).



The reason that use of the predominant motive standard in reviewing a

districting decision is bound to fail is more fundamental than that:  in

the political environment in which race can affect election results,

many of these traditional districting principles cannot be applied

without taking race into account and are thus, as a practical matter,

inseparable from the supposedly illegitimate racial considerations.  See

Pildes & Niemi, supra, at 578 ("[R]ace frequently correlates with other

socioeconomic factors.  In evaluating oddly shaped districts, this

correlation will require courts to attempt to untangle legitimate

communities of interest from the now-illegitimate one of race.  If

blacks as blacks cannot be grouped into a `highly irregular' district,

but urban residents or the poor can, how will courts distinguish these

contexts, and under what mixed-motive standard?"); Issacharoff,

Constitutional Contours 58 ("Given the palpability of racial concerns in

the political arena, [Miller's causation standard could] . . . either

doom all attempts to distribute political power in multi-ethnic

communities or . . . fail to provide a basis for distinguishing proper

from improper considerations in redistricting").



If, for example, a legislature may draw district lines to preserve the

integrity of a given community, leaving it intact so that all of its

members are served by one representative, this objective is inseparable

from preserving the community's racial identity when the community is

characterized, or even self-defined, by the race of the majority of

those who live there.  This is an old truth, having been recognized

every time the political process produced an Irish or Italian or Polish

ward.



[E]thnicity itself can tie people together, as volumes of social science

literature have documented -- even people with divergent economic

interests.  For this reason, ethnicity is a significant force in

political life. . . . *    *    *    *



. . .  The creation of ethnic districts reflecting felt identity is not

ordinarily viewed as offensive or demeaning to those included in the

delineation. Miller v. Johnson, 515 U.S. at ___ (GINSBURG, J.,

dissenting).



Or take the traditional principle of providing protection for

incumbents.  The plurality seems to assume that incumbents may always be

protected by drawing lines on the basis of data about political parties.

 Cf. ante at ___.  But what if the incumbent has drawn support largely

for racial reasons?  What, indeed, if the incumbent was elected in a

majority minority district created to remedy vote dilution that resulted

from racial bloc voting?  It would be sheer fantasy to assume that

consideration of race in these circumstances is somehow separable from

application of the traditional principle of incumbency protection, and

sheer incoherence to think that the consideration of race that is

constitutionally required to remedy Fourteenth and Fifteenth Amendment

vote dilution somehow becomes unconstitutional when aimed at protecting

the incumbent the next time the census requires redistricting.



Thus, it is as impossible in theory as in practice to untangle racial

consideration from the application of traditional districting principles

in a society plagued by racial-bloc voting with a racial minority

population of political significance, or at least the unrealized

potential for achieving it.  And it is for just this fundamental reason

that a test turning on predominant purpose is incapable of producing any

answer when traditional districting principles are applied in the

political environment in which Shaw I actions are brought. II



Shaw I's recognition of a misuse of race in districting even when no

vote dilution results thus rests upon two basic deficiencies:  first,

the failure to provide a coherent concept of equal protection injury,

there being no separably injured class and no concept of harm that would

not condemn a constitutionally required remedy for past dilution as well

as many of the districting practices that the Court is seeking to

preserve; second, the failure to provide a coherent test for

distinguishing a "predominant" racial consideration from the application

of traditional districting principles in a society whose racial mixture

is politically significant and where racial-bloc voting exists.  The

necessary consequence of these shortcomings is arbitrariness; it is

impossible to distinguish what is valid from what is not, or to decide

how far members of racial minorities may engage "in the same sort of

pluralist electoral politics that every other bloc of voters enjoys." 

Karlan, Our Separatism 103.  Indeed, if one needed further proof of this

arbitrariness, one need go no further than JUSTICE STEVENS' dissent in

this case.  The plurality effectively concedes that JUSTICE STEVENS has

not unfairly applied the principles governing the Shaw cause of action,

cf. ante at ___, n. (noting that "[i]n the application of our precedents

to District 30, our disagreement with JUSTICE STEVENS' dissent, [ante]

at ___, is largely factual"); in my judgment he has faithfully applied

those principles in the spirit intended by the plurality.  And yet the

conclusions that the two sides reach after applying precisely the same

test could not be more different.



Along with this endemic unpredictability has come the destruction of any

clear incentive for the States with substantial minority populations to

take action to avoid vote dilution.  Before Shaw, state politicians who

recognized that minority vote dilution had occurred, or was likely to

occur without redistricting aimed at preventing it, could not only urge

their colleagues to do the right thing under the Fourteenth Amendment,

but counsel them in terrorem that losing a dilution case would bring

liability for counsel fees under 42 U.S.C.  1988(b) or 42 U.S.C. 

1973l(e).  See Issacharoff, Constitutional Contours 48 ("Minority

political actors could leverage not only their political power but the

enforcement provisions of Section 5 of the Voting Rights Act, and the

threat of suit under Section 2 of the Act against adverse districting

decisions"); cf. Hastert v. Illinois State Bd. of Election Commr's, 28

F.3d 1430, 1444 (CA7 1993) (awarding fees to the prevailing parties in a

case in which the state legislature failed to draw congressional

districts, over the Board of Elections' objection that it had "no

interest in the eventual outcome except that there be an outcome" for it

to implement) (emphasis in original).  But this argument is blunted now,

perhaps eliminated in practice, by the risk of counsel fees in a Shaw I

action.  States seeking to comply in good faith with the requirements of

federal civil rights laws now find themselves walking a tightrope:  if

they draw majority black districts they face lawsuits under the equal

protection clause; if they do not, they face both objections under

section 5 of the Voting Rights Act and lawsuits under section 2. Karlan,

Post-Shaw Era 289.  See ante at ___ (STEVENS, J., dissenting) ("On one

hand, States will risk violating the Voting Rights Act if they fail to

create majority minority districts.  If they create those districts,

however, they may open themselves to liability under Shaw and its

progeny.").  The States, in short, have been told to get things just

right, no dilution and no predominant consideration of race short of

dilution, without being told how to do it.  The tendency of these

conflicting incentives is toward a stalemate, and neither the moral

force of the Constitution nor the mercenary threat of liability can

operate effectively in this obscurity.



As a consequence, where once comprehensible districting obligations

confronted the legislators and governors of the States, there is now a

vacuum of responsibility in any State with the mixed population from

which Shaw suits come.  We can no longer say with the old assurance that

such States have a duty to comply with federal requirements in

districting, since a State, like an individual, can hardly be blamed for

failing to fulfill an obligation that has never been explained.  It is

true, of course, that a State may suffer consequences if the ultimate

arbiter decides on a result different from the one the State has put in

place, but that bad luck does not change the fact that a State cannot be

said to be obliged to apply a standard that has not been revealed. 

Because the responsibility for the result can only be said to rest with

the final arbiter, the practical responsibility over districting has

simply shifted from the political branches of the States with mixed

populations to the courts, and to this Court in particular. The Court

has apparently set itself upon a course of . . . reviewing challenged

districts one by one and issuing opinions that depend so

idiosyncratically on the unique facts of each case that they provide no

real guidance to either lower courts or legislatures. Karlan, Post-Shaw

Era 288.  The tragedy in this shift of political responsibility lies not

only in the fact of its occurrence in this instance, but in the absence

of coherent or persuasive justifications for causing it to occur. III



Although today's cases do not address the uncertainties that stem from

Shaw's underlying incoherence, they do aim to mitigate its

inscrutability with some specific rules. A



In each of today's cases, the Court expressly assumes that avoiding a

violation of the Voting Rights Act qualifies as a sufficiently

compelling government interest to satisfy the requirements of strict

scrutiny.  See ante at ___ ("As we have done in each of our three

previous cases . . . we assume without deciding that compliance with the

results test [of section 2 of the Voting Rights Act] . . . can be a

compelling state interest"); Shaw II, ante, at ___ ("We assume,

arguendo, for the purpose of resolving this case, that compliance with 

2 could be a compelling interest").  While the Court's decision to

assume this important point arguendo is no holding, see Seminole Tribe

of Fla. v. Florida, 517 U.S. ___, ___ (1996) (SOUTER, J., dissenting),

the assumption itself is encouraging because it confirms the view that

the intentional creation of majority minority districts is not

necessarily a violation of Shaw I, ante, at ___ (strict scrutiny does

not "apply to all cases of intentional creation of majority minority

districts"), and it indicates that the Court does not intend to bring

the Shaw cause of action to what would be the cruelly ironic point of

finding in the Voting Rights Act of 1965 (as amended) a violation of the

Fourteenth Amendment's equal protection guarantee.  Cf. Pildes & Niemi,

92 Mich.L.Rev. at 498 (observing that "[i]f the Court believed there

were serious constitutional questions with the fundamental structure of

this scheme, the Court had numerous means to avoid permitting an

unconstitutionally composed legislature to assume power," and seeing the

reservation of this question in Voinovich v. Quilter, 507 U.S. at 157,

as "evidence that a majority of the Court is not prepared to find a

general ban on race-conscious districting in the Constitution"). 

JUSTICE O'CONNOR's separate opinion, ante at ___, bears on each of these

points all the more emphatically, for her view that compliance with  2

is (not just arguendo) a compelling state interest and her statement of

that position virtually insulate the Voting Rights Act from jeopardy

under Shaw as such. B



The second point of reference to come out of today's cases is the rule

that if a State begins its map-drawing efforts with a compact majority

minority district required by Gingles, the State may not rely too

heavily on racial data in adjusting that district to serve traditional

districting principles.  While this rule may indeed provide useful

guidance to state legislatures, its inherent weakness is clear from what

was said above, supra at ___:  it is in theory and in fact impossible to

apply "traditional districting principles" in areas with substantial

minority populations without considering race.  As to some of those

principles, to be sure, the ban on the overuse of racial data may not

have much significance; racially identified communities can be

identified in other ways and will be, after today.  But protecting a

minority incumbent may be another matter, since we cannot assume, as the

plurality does, that reliance on information about "party affiliation"

will serve to protect a minority incumbent, and we cannot tell when use

of racial data will go too far on the plurality's view, ante at ___.  It

therefore may well be that loss of the capacity to protect minority

incumbency is the price of the rule limiting States' use of racial data.

 If so, it will be an exceedingly odd result, when the whole point of

creating yesterday's majority minority district was to remedy prior

dilution, thus permitting the election of the minority incumbent who

(the Court now seems to declare) cannot be protected as any other

incumbent could be. C



The third point of reference attributable to today's cases is as yet

only a possibility; a suggestion in the discussions of the narrow

tailoring test that States seeking to avoid violating  2 of the Voting

Rights Act may draw the district that the Voting Rights Act compels, and

this district alone.  See Shaw II, ante, at ___ (rejecting North

Carolina's District 12 because it does not sufficiently coincide with

the assumed Gingles district); ante at ___ (STEVENS, J., dissenting)

("It now seems clear that the only way that a State can both create a

majority minority district and avoid a racial gerrymander is by drawing

. . . within the `limited degree of leeway' granted by the Court . . .

the precise compact district that a court would impose in a successful 

2 challenge").  If the Court were to say that a district drawn to avoid

dilution must respond to the dilution threat in some geographically

exact way, but see Shaw II, ante, at ___, n. 8 (suggesting that States

may have flexibility in complying with  2 of the Voting Rights Act);

ante at ___ (STEVENS, J., dissenting) (noting that States traditionally

have enjoyed a broader discretion in drawing district lines), then

presumably a district drawn in a race-conscious fashion could survive

only if it was as compact as the Gingles district hypothesized for

purposes of stating a vote-dilution claim, and positioned where the

hypothetical district would be.



If the Court ultimately were to reach such a conclusion, it would in one

respect be taking a step back toward Shaw I and its suggestion that a

district's shape might play an important, if not determinative role in

establishing a cause of action.  Such a step would, however, do much

more than return to Shaw I, which suggested that a compact district

would be a safe haven, but not that the district hypothesized under

Gingles was the only haven.  See, e.g., Shaw I, 509 U.S. at 646 ("The

district lines may be drawn, for example, to provide for compact

districts of contiguous territory, or to maintain the integrity of

political subdivisions")



I refer to this step as a "possibility" deliberately.  The Court in Shaw

II does not go beyond an intimation to this effect, and Bush raises

doubt that the Court would go so far.  See ante at ___ (rejecting the

argument made by JUSTICE STEVENS); see also ante at ___ ("the States

retain flexibility that federal courts enforcing  2 lack. . . .   And

nothing that we say today should be read as limiting `a State's

discretion to apply traditional districting principles'"); but see ante

at ___ (O'CONNOR, J., concurring) ("if a State pursues that compelling

interest by creating a district that `substantially addresses' the

potential liability, and does not deviate substantially from a

hypothetical court-drawn  2 district for predominantly racial reasons,

its districting plan will be deemed narrowly tailored" (citations

omitted)); but see also ante at ___ ("We also reaffirm that the `narrow

tailoring' requirement of strict scrutiny allows the States a limited

degree of leeway in furthering such interests. . . .  We thus reject, as

impossibly stringent, the District Court's view of the narrow tailoring

requirement, that `a district must have the least possible amount of

irregularity in shape, making allowances for traditional districting

criteria'" (citation omitted)).  Indeed, Bush leaves open the

possibility that a State could create a majority minority district that

does not coincide with the Gingles shape so long as racial data is not

overused, ante at ___, and it does not suggest that a Shaw claim could

be premised solely on a deviation from a Gingles district.



Suffice it to say for now that if the Court were to try to render Shaw

more definite by imposing any such limitations on shape and placement,

the added measure of clarity would either be elusive or it would come at

an exorbitant price from States seeking to comply with the Voting Rights

Act and the Fourteenth and Fifteenth Amendments.  It would be elusive if

the Court meant that race could be considered in alleviating racial

dilution but not in applying any traditional districting principle:  we

have already seen that race is inextricably intertwined with some common

districting principles when applied in a multiracial society.  See supra

at ___.  Or it would come at an exorbitant price, because no other

districting principle would be allowed to affect the compactness or

placement that would be required for purposes of Gingles.  The Court

would thus be cutting back on a State's power to vary district shape

through its application of the very districting principles that are

supposed to predominate in importance over racial consideration.  That

is, the Court would be reducing the discretion of a State seeking to

avoid or correct dilution to the scope of a federal court's discretion

when devising a remedy for dilution.  There could, of course, be no

justification for taking any such step.  While there is good reason to

limit a federal court's discretion to interfere in a State's political

process when it employs its remedial power in dilution cases, cf.

Voinovich v. Quilter, 507 U.S. at 156 ("Federal courts are barred from

intervening in state apportionment in the absence of a violation of

federal law precisely because it is the domain of the States . . . to

conduct apportionment"), there is no apparent reason to impose the same

limitations upon the discretion accorded to a State subject to an

independent constitutional duty to make apportionment decisions, see

ibid. ("Because the States . . . derive their reapportionment authority

. . . from independent provisions of state and federal law, . . . the

federal courts are bound to respect the States' apportionment choices

unless those choices contravene federal requirements") (internal

quotation marks omitted).  The principles of federalism that we have

tried to follow strongly counsel against imposing any such limitations.

D



In sum, the three steps the Court takes today toward a more definite

cause of action either fail to answer the objections to Shaw I or prompt

objections of their own.  Recognition of a State's interest in complying

with the Voting Rights Act does not address the practical impossibility

courts will encounter in identifying a predominant use of race, as

distinguished from some lesser, reasonable consideration of it, when a

State applies its customary districting principles.  The limitation on

the use of racial data is unlikely to make much difference in practice

except to jeopardize minority incumbency protection.  And the

possibility that the Court will require Gingles districts (or districts

substantially close to them) when compliance with  2 of the Voting

Rights Act is an object of districting would render a State's

districting obligation more definite only by eliminating its ability to

apply the very districting principles traditionally considered to be

important enough to furnish a theoretical baseline of reasonable

districting practices. IV



If today's developments fall short of curing Shaw's unworkability, it

must be said that options for addressing them are few.  Assuming that

Shaw is not to be overruled as a flawed experiment, the Court may select

from two alternatives, depending on whether its weightier concern is to

preserve traditional districting principles or to cure the anomalies

created by Miller's "predominant purpose" criterion.



If the Court's first choice is to preserve Shaw in some guise with the

least revolutionary effect on districting principles and practice, the

Court could give primacy to the principle of compactness and define the

limits of tolerance for unorthodox district shape by imposing a

measurable limitation on the bizarre, presumably chosen by reference to

historical practice (adjusted to eliminate the influence of any dilution

that very practice may have caused in the past, cf. Pildes & Niemi, 92

Mich.L.Rev. at 573-574, n. 246 (discussing the egregious racial

gerrymanders of the 19th century)) and calculated on the basis of a

district's dispersion, perimeter, and population.  See id. at 553-575. 

This alternative would be true to Shaw I in maintaining that a point can

be reached when the initially lawful consideration of race becomes

unreasonable and in identifying appearance as the expression of undue

consideration; and it would eliminate Miller's impossible obligation to

untangle racial considerations from so-called "race-neutral" objectives

(such as according respect to community integrity and protecting the

seats of incumbents) when the racial composition of a district and voter

behavior bar any practical chance of separating them.  The incongruities

of Shaw's concept of injury when considered in light of our customary

equal protection analysis, our remedial practice, and traditional

respect for state districting discretion would, of course, persist, but

if Shaw were defined by measures that identified forbidden shape as the

manifestation of unreasonable racial emphasis, we would at least provide

the notice and guidance that are missing from the law today.



The other alternative for retaining a Shaw cause of action in some guise

would be to accept the fact that, in the kind of polarized multiracial

societies that will generate Shaw actions as presently understood,

racial considerations are inseparable from many traditional districting

objectives, making it impossible to speak of race as predominating.  The

consequence of facing this reality is that if some consideration of race

is to be forbidden as supposedly unreasonable in degree, then the use of

districting principles that implicate the use of race must be forbidden.

 That is, traditional districting practices must be eliminated.  Such a

result would, of course, be consistent with Shaw I's concept of injury

as affecting voters of whatever race.  But cf. Valley Forge Christian

College v. Americans United for Separation of Church and State, Inc.,

454 U.S. 464, 489 (1982) (fact that some expressive harms are

insufficient to satisfy Article III standing requirements does not allow

for relaxation of those requirements).  The result, in short, would be

color blindness in determining the manner of choosing representatives,

either by eliminating the practice of districting entirely, or by

replacing it with districting on some principle of randomness that would

not account for race in any way.



While such is the direction in which Shaw and Miller together point, the

objections to following any such course seem insurmountable.  The first

is the irony that the price of imposing a principle of color blindness

in the name of the Fourteenth Amendment would be submerging the votes of

those whom the Fourteenth and Fifteenth Amendments were adopted to

protect, precisely the problem that necessitated our recognition of vote

dilution as a constitutional violation in the first place.  Eliminating

districting in the name of color blindness would produce total

submersion; random submersion (or packing) would result from districting

by some computerized process of color blind randomness.  Thus, unless

the attitudes that produce racial bloc voting were eliminated along with

traditional districting principles, dilution would once again become the

norm.  While dilution as an intentional constitutional violation would

be eliminated by a randomly districted system, this theoretical nicety

would be overshadowed by the concrete reality that the result of such a

decision would almost inevitably be a so-called "representative"

Congress with something like 17 black members.  See supra at ___.  In

any event, the submergence would violate the prohibition of even

nonintentional dilution found in  2 of the Voting Rights Act.  The only

way to avoid this conflict would be to declare the Voting Rights Act

unconstitutional, a prospect hardly in harmony with the Court's

readiness to assume today that compliance with the Voting Rights Act

qualifies as a compelling state interest for purposes of litigating a

Shaw claim.



The second objection is equally clear.  Whatever may be the implications

of what I have called Shaw's failings, the Court has repeatedly made it

plain that Shaw was in no way intended to effect a revolution by

eliminating traditional districting practice for the sake of color

blindness.  Shaw I, 509 U.S. at 642 ("Despite their invocation of the

ideal of a "color blind" Constitution, see Plessy v. Ferguson, 163 U.S.

537, 559 (1896) (Harlan, J., dissenting), appellants appear to concede

that race-conscious districting is not always unconstitutional. . . . 

That concession is wise:  this Court never has held that race-conscious

state decisionmaking is impermissible in all circumstances"); cf.

Richmond v. J.A. Croson Co., 488 U.S. 469, (1989) (SCALIA, J.,

concurring in judgment) (criticizing the majority for rejecting a strict

principle of color blindness).  Indeed, the very fear that led to the

creation of the Shaw cause of action was that racial concerns were

taking too heavy a toll on districting practices that had evolved over

the years through the political process.  Shaw I, 509 U.S. at   JUSTICE

O'CONNOR, moreover, has made it obvious that race has a legitimate place

in districting,  Shaw I, supra at 642 ("race-conscious redistricting is

not always unconstitutional"); Miller, 515 U.S. at ___ (O'CONNOR, J.,

concurring); ante at ___ (O'CONNOR, J., concurring), that the

intentional creation of majority minority districts is not forbidden by

Shaw, Miller, 515 U.S. at ___ (O'CONNOR, J., concurring) (districts may

be permissible "even though race may well have been considered in the

redistricting process"); ante at ___ (O'CONNOR, J., concurring), and

that Shaw was aimed at only the exceptional district, 515 U.S. at ___

("Application of the Court's standard does not throw into doubt the vast

majority of the Nation's 435 congressional districts").  Of the present

Court majority, only Justices SCALIA and THOMAS are on record as

concluding that any intentional creation of a majority minority district

is a forbidden racial gerrymander.  Ante at ___ (THOMAS, J., concurring

in judgment).



Since a radical transformation of the political selection process in the

name of color blindness is out of the question, the Court's options for

dealing with Shaw's unworkability are in truth only these:  to confine

the cause of action by adopting a quantifiable shape test or to

eliminate the cause of action entirely.  Because even a truncated Shaw

would rest on the untenable foundation I have described, and the

supposed, expressive harm Shaw seeks to remedy is unlikely to justify

the disruption that even a modified Shaw would invite, there is

presently no good reason that the Court's withdrawal from the presently

untenable state of the law should not be complete.  While I take the

commands of stare decisis very seriously, the problems with Shaw and its

progeny are themselves very serious.  The Court has been unable to

provide workable standards, the chronic uncertainty has begotten no

discernible reliance, and the costs of persisting doubt about the limits

of state discretion and state responsibility are high.



There is, indeed, an added reason to admit Shaw's failure in providing a

manageable constitutional standard and to allow for some faith in the

political process.  That process not only evolved the very traditional

districting principles that the Court has pledged to preserve, but has

applied them in the past to deal with ethnicity in a way that should

influence our thinking about the prospects for race.  It is difficult to

see how the consideration of race that Shaw condemns (but cannot avoid)

is essentially different from the consideration of ethnicity that

entered American politics from the moment that immigration began to

temper regional homogeneity.  Recognition of the ethnic character of

neighborhoods and incumbents, through the application of just those

districting principles we now view as traditional, allowed ethnically

identified voters and their preferred candidates to enter the mainstream

of American politics, see Miller, supra at ___ (GINSBURG, J.,

dissenting); D. Judd, The Politics of American Cities:  Private Power

and Public Policy 70 (3d ed. 1988); see generally S. Erie, Rainbow's

End:  Irish Americans and the Dilemmas of Urban Machine Politics,

1840-1985 (1988), and to attain a level of political power in American

democracy.  The result has been not a state regime of ethnic apartheid,

but ethnic participation and even a moderation of ethnicity's divisive

effect in political practice.  For although consciousness of ethnicity

has not disappeared from the American electorate, its talismanic force

does appear to have cooled over time.  It took Boston Irish voters, for

example, to elect Thomas Menino mayor in 1993.{10}



There is, then, some reason to hope that if vote dilution is attacked at

the same time that race is given the recognition that ethnicity has

historically received in American politics, the force of race in

politics will also moderate in time.  There are even signs that such

hope may be vindicated, even if the evidence is necessarily tentative as

yet.  See U.S. Comm'n on Civil Rights, The Voting Rights Act:  Ten Years

After, p. 155 (Jan. 1975) ("In many areas the great increase in minority

registration and voting since the passage of the Voting Rights Act in

1965 has meant that politicians can no longer afford to ignore minority

voters.  This has brought about a significant decline in racial appeals

by candidates and has made incumbents and candidates more responsive to

minority needs"); Carsey, The Contextual Effects of Race on White Voter

Behavior:  The 1989 New York City Mayoral Election, 57 J. of Politics

221, 228 (1995) (reporting, in 1994, that "the contextual effects of

race may not be so different from the contextual effects of factors like

partisanship, ethnicity, or social class as we might have believed");

Sigelman, Sigelman, Walkosz, & Nitz, Black Candidates, White Voters: 

Understanding Racial Bias in Political Perceptions, 39 Am.J. of

Political Science 243, 244 (1995) ("Over the years, white Americans have

expressed increasing willingness to vote for black candidates"); Peirce,

Fresh Air in City Hall, Baltimore Sun, Nov. 8, 1993, p. 7A ("In contest

after contest, victory has gone to mayoral candidates who eschew talk of

race"); see also Gingles, 478 U.S. at 56 (noting that crossover voting

in favor of minority candidates is more common when minority incumbents

stand for reelection); Collins v. Norfolk, 883 F.2d 1232, 1243 (CA4

1989) (same).  This possibility that racial politics, too, may grow

wiser so long as minority votes are rescued from submergence should be

considered in determining how far the Fourteenth and Fifteenth

Amendments require us to devise constitutional common law to supplant

the democratic process with litigation in federal courts.  It counsels

against accepting the profession that Shaw has yet evolved into a

manageable constitutional standard, and from that case's invocation

again today I respectfully dissent. Footnotes O'CONNOR, J., lead opinion

(Footnotes)



* Together with No. 94-806, Lawson et al. v. Vera et al., and No.

94-988, United States v. Vera et al., also on appeal from the same

court.



* In the application of our precedents to District 30, our disagreement

with JUSTICE STEVENS' dissent, post at ___, is largely factual.  In

reviewing the District Court's findings of primary fact,  we cannot

ignore the reality that the District Court heard several days of

testimony and argument and became significantly more familiar with the

factual details of this case than this Court can be.  We therefore

believe that the dissent errs in second-guessing the District Court's

assessment of the witnesses' testimony, see post at ___, n. 24, and in

dismissing as mere "fine-tuning," post at ___, the practice of using

race as a proxy that the District Court found, based on ample evidence,

to be pervasive, see Vera v. Richards, 861 F. Supp 1304, 1322 (SD Tex.

1994).



For the same reason, we decline to debate the dissent on every factual

nuance on which it diverges from the District Court's, and our, view. 

But two of its specific claims about District 30 merit a response. 

First, the dissent asserts that [a] comparison of the 1992 precinct

results with a depiction of the proportion of black population in each

census block reveals that Democratic-leaning precincts cover a far

greater area [of District 30] than majority black census blocks. Post at

___ (emphasis added).  While that may be true, the dissent's reliance on

1992 election results is misplaced.  Those results were not before the

legislature when it drew the district lines in 1991, and may well

reflect the popularity and campaign success of Representative Johnson

more than the party political predispositions of the District's

residents.  (The same error infects the dissent's discussion of the

Collin County hook, post at ___, n. 19 (relying on 1992 election

results).)  And looking at totals, rather than at the difference between

areas just inside and just outside the district lines, is misleading: 

race may predominate in the drawing of district lines because those

lines are finely drawn to maximize the minority composition of the

district, notwithstanding that in an overwhelmingly Democratic area, the

total of Democrats in the district far exceeds its total minority

population.



Second, the dissent suggests that strict scrutiny should not apply

because District 30's compact core has a higher African American

population percentage than its wayward tentacles.  Post at ___.  In

doing so, it again ignores the necessity of determining whether race

predominated in the redistricters' actions in light of what they had to

work with.  Once various adjacent majority minority populations had been

carved away from it by the use of race as a proxy to enhance the

electoral chances of neighboring incumbents, the core of District 30 was

substantially too small to form an entire district.  The principal

question faced by the redistricters was, therefore, what territory to

add to the core out of the remainder of the Dallas area, which remainder

has an average African American population substantially below the 21%

county average.  In answering that question, as the District Court

explained and the maps bear witness, the redistricters created bizarre,

far-reaching tentacles that intricately and consistently maximize the

available remaining African American population. THOMAS, J., concurring

(Footnotes)



1. In Adarand, we overruled Metro Broadcasting, Inc. v. FCC, 497 U.S.

547 (1990), and held that strict scrutiny applies to racial

classifications by the Federal Government as well as to those by the

States.  For quite some time, however, we have consistently held that

race-based classifications by the States must be strictly scrutinized. 

See, e.g., Richmond v. J. A. Croson Co., 488 U.S. 469, (1989) (plurality

opinion); id. at 520 (SCALIA, J., concurring in judgment); Wygant v.

Jackson Board of Ed., 476 U.S. 267, 273 (1986) (plurality opinion); id.

at 285 (O'CONNOR, J., concurring in part and concurring in judgment).



2. It is unnecessary to parse in detail the contours of each challenged

district.  See ante at ___.  I agree that the geographic evidence is

itself sufficient to invoke strict scrutiny, but once the State directly

conceded that it intentionally used racial classifications to create

majority minority districts, there was no need to rely on circumstantial

evidence. STEVENS, J., dissenting (Footnotes)



1. The District Court recognized, but erroneously ignored, the

overwhelming weight of evidence demonstrating that political

considerations dominated the shaping of Texas' congressional districts. 

See Vera v. Richards, 861 F.Supp. 1304, 1331, 1334-1336 (SD Tex. 1994);

infra at ___.



2. Because I believe that political gerrymanders are more objectionable

than the "racial gerrymanders" perceived by the Court in recent cases,

see Karcher v. Daggett, 462 U.S. 725, 748 (1983) (STEVENS, J.,

concurring); Davis v. Bandemer, 478 U.S. 109,  166 (1985) (Powell, J.,

concurring in part and dissenting in part), I am not entirely

unsympathetic to the Court's holding.  I believe, however, that the

evils of political gerrymandering should be confronted directly, rather

than through the race-specific approach that the Court has taken in

recent years.  See also infra at ___.



3. In elections since 1980, the State has elected a Democrat in only two

of four gubernatorial races, and in only two of six races for the United

States Senate.  America Votes 21:  A Handbook of Contemporary American

Election Statistics 417 (R. Scammon & A. McGillivray).  Furthermore, in

1994, Republican candidates received a total of 550,000 more votes than

Democratic candidates in Texas' 30 races for the United States House of

Representatives, id. at 4, while in 1992, Democratic House candidates

outpolled Republicans by only 147,000 votes (despite winning 27 of 30

districts).  America Votes 20:  A Handbook of Contemporary American

Election Statistics 474 (R. Scammon & A. McGillivray eds. 1993).



4. Then-State Senator from Dallas, Eddie Bernice Johnson, who was chair

of the Senate Subcommittee on Congressional Districts, maneuvered to

construct District 30 in a manner that would ensure her election.  861

F.Supp. at 1313; Politics in America 1994:  The 103rd Congress 1536

(1993) ("This is the District Eddie Bernice Johnson drew").  Vice-Chair

of the same committee, Frank Tejeda, also "attempted to draw a district

[District 28] that would facilitate his potential candidacy."  861

F.Supp. at 1326.  And State Senator Gene Green and State Representative

Roman Martinez, both Houston-area officials with designs on Congress,

competed in an effort to design District 29 in a way that would

guarantee their own election.  Id. at 1324, n. 27.  (Martinez later

dropped out of the congressional race to run for State Senate.)  Because

the role that these legislators played in the redistricting process was

largely identical to that played by sitting incumbents, my references to

the role of "incumbents" in the redistricting process generally refer to

these individuals as well.



5. As did many other States, Texas kept track of the shapes of its

post-1990 districts with a computer districting program loaded with 1990

census information and geographic information at scales ranging from

statewide to that of a city block.  See generally Shaw v. Hunt, 861

F.Supp. 408, 457 (EDNC 1994) (describing computer programs); 861 F.Supp.

at 1318-1319.  The dramatic increase in bizarrely shaped districts after

1990 can be traced at least in part, to the fact that computers allowed

legislators to achieve their political goals geographically in a manner

far more precise than heretofore possible.  See Pildes & Niemi,

Expressive Harms, "Bizarre Districts," and Voting Rights:  Evaluating

Election-District Appearances After Shaw v. Reno, 92 Mich.L.Rev. 483,

574 (1993); Note, The Illegitimacy of the Incumbent Gerrymander, 74

Texas L.Rev. 913, 924 (1996).



6. The State added District 28 (a majority Hispanic district in South

Texas), District 29 (a majority Hispanic district in Houston), and

District 30 (a majority black district in Dallas).  In addition, the

state reconfigured Houston's District 18.  That district had elected

African American Representatives to Congress since the early 1970s and

remained majority minority in 1990, although a plurality of its

population was by then Hispanic.  To create District 29, the legislature

altered the shape of District 18 to move parts of its Hispanic

population into that neighboring district while retaining a majority

black population.  To the extent that the precise shape of these

districts relied on race, rather than other factors, that racial

gerrymandering was somewhat less effective than the political

gerrymandering had been:  District 29, created as a majority Hispanic

district, elected an Anglo, former State Senator Green, in 1992, and

reelected him in 1994.  America Votes 21 at 437.  Given his substantial

role in crafting the district to meet his electoral needs, see supra, n.

4, Green's success suggests the power of incumbency over race.



7. I do not agree with the Court's approach to these cases. 

Nonetheless, given that the Court seems settled in its conclusion that

racial gerrymandering claims such as these may be pursued, I endorse

this proposition.



8. Though expressly reserving the issue in Shaw I, we noted there that

petitioners wisely conceded that while "race-conscious redistricting is

not always unconstitutional . . . This Court has never held that

race-conscious state decisionmaking is impermissible in all

circumstances."  509 U.S. at 642 (emphasis in original).  The threshold

test for the application of strict scrutiny as set forth in Miller

implicitly accepts this as true, concluding that strict scrutiny applies

not when race merely influences the districting process, but only when

"the legislature subordinated traditional race-neutral districting

principles . . . to racial considerations."  Miller v. Johnson, 515 U.S.

___, ___ (1995) (emphasis added); see also id. at ___ (O'CONNOR, J.,

concurring) (test does not "throw into doubt the vast majority of the

Nation's 435 congressional districts . . . even though race may well

have been considered in the redistricting process").  Shaw II similarly

recognizes that intent does not trigger strict scrutiny:  Although the

District Court concluded that the state "deliberately drew" the district

in question to ensure that it included a majority of African American

citizens, see Shaw, 861 F.Supp. at 473; Shaw II, ante at ___, the Court

reviews the District Court's findings regarding the demographics of the

district to determine whether the strict scrutiny was appropriately

applied.  See ante at ___; cf. ante at ___ (THOMAS, J., concurring in

judgment) (where state intends to create majority minority district,

application of strict scrutiny not even a "close question").  JUSTICE

THOMAS takes a strong view on this matter, arguing that a majority

minority district should escape strict scrutiny only when it is created

"in spite of," not "because of," the race of its population.  Ante at

___.  But because minorities are, by definition, minorities in the

population, it will be rare indeed for a State to stumble across a

district in which the minority population is both large enough and

segregated enough to allow majority minority districts to be created

with at most a "mere awareness" that the placement of the lines will

create such a district.  See ibid.  Indeed, I doubt that any such

district exists in the entire Nation; the creation of even the most

compact majority minority district will generally require a conscious

decision to draw its lines "just so" to ensure that the group is not a

minority in the district population.  It appears, however, that even

when a district is placed "just so" in order to include a traditional

community in which race does correlate with community interests

(consider, for example, New York District 15, which is centered on

Harlem), JUSTICE THOMAS would review that district with the same

presumption of invidiousness with which we viewed the district in

Gomillion v. Lightfoot, 364 U.S. 339 (1960).  Cf. Miller, 515 U.S. at

___ (GINSBURG, J., dissenting) (noting that "ethnicity itself can tie

people together" in communities of interest).  Because the creation of

such a district threatens neither the harms of Gomillion nor, I believe,

any harms against which the Fourteenth Amendment was intended to

protect, I cannot accept his conclusion.



9. Because the Court's approach to cases of this kind seeks to identify

the "predominant" motive of the legislature, it is worth pointing out,

as we have on so many prior occasions, that it is often "difficult or

impossible for any court to determine the `sole' or `dominant'

motivation behind the choices of a group of legislators."  Palmer v.

Thompson, 403 U.S. 217, 225 (1971).  As in every other legislative body,

each of the members of Texas' Legislature has his or her own agenda and

interests-particularly in the "complicated process" of redistricting, in

which every decision "inevitably has sharp political impact."  White v.

Weiser, 412 U.S. 783, (1973).  In these circumstances, [r]arely can it

be said that a legislature . . . operating under a broad mandate made a

decision motivated solely by a single concern, or even that one

particular purpose was the "dominant" or "primary" one.  In fact, it is

because legislators . . . are properly concerned with balancing

competing considerations that courts refrain from reviewing the merits

of their decisions, absent a showing of arbitrariness or irrationality.

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.

252, 265 (1977); see also Edwards v. Aguillard, 482 U.S. 578, (1987)

(SCALIA, J., dissenting); Shaw II, ante at ___ (STEVENS, J.,

dissenting).



Not only is this a case in which a legislature is operating under a

"broad mandate," but other factors weigh in favor of deference as well. 

First, the inherently political process of redistricting is as much at

the core of state sovereignty as any other.  Second, the "motive" with

which we are concerned is not per se impermissible.  (For that reason,

this case is very different from Price Waterhouse v. Hopkins, 490 U.S.

228 (1989), and Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252 (1977), in which the plaintiffs alleged that the

defendant's action was motivated by an intent to harm individuals

because of their status as members of a particular group.  Where there

is "proof that a discriminatory purpose has been a motivating factor in

the decision," the "judicial deference" due to the legislative process

is no longer justified.  Id. at ) Finally, those that are injured by the

allegedly discriminatory districts can alleviate their injury through

the democratic process:  those in the district could elect a

representative who is not a part of their racial group, while the

population at large could elect a legislature that refused to rely on

racial considerations in the drawing of districts.  In such

circumstances we should take particular care in questioning the

legislature's motives and, if in doubt, presume that the legislature has

acted appropriately.  See post at ___ (SOUTER, J., dissenting).



10. We require state legislatures to ensure that populations, from

district to district, are "as mathematically equal as reasonably

possible," with de minimis exceptions permissible only in "unavoidable"

instances.  White v. Weiser, 412 U.S. at 790; see also Karcher, 462 U.S.

at   Population variances are not permissible even "if they necessarily

result from a State's attempt to avoid fragmenting political

subdivisions by drawing congressional district lines along existing . .

. political subdivision boundaries." White, 412 U.S. at 791 (citing

Kirkpatrick v. Preisler, 394 U.S. 526, (1969)).  The legislature,

therefore, understandably felt compelled to achieve mathematical

equality regardless of other concerns.  Rather surprisingly, they were

able to do so:  every one of Texas' 30 congressional districts contains

precisely 566,217 persons.  Of course, this precision could not have

been accomplished without breaking apart counties, cities,

neighborhoods, and even preexisting voting precincts.



11. This phenomenon is not unique to Dallas County:  throughout the

State, "incumbent residences repeatedly fall just along district lines."

 861 F.Supp. at 1318 (giving examples); see State's Exhs. 10A and 10B

(showing incumbent residences).  District 6, for instance, changed from

a rural district stretching far to the southeast of Dallas to a more

suburban district wrapping around Fort Worth.  As it did so, however,

the district pivoted around the home of incumbent Representative Joe

Barton, whose residence sits at the extreme southeastern end of a

district stretching in a 100-mile-long loop around Fort Worth.  See

Appendix D, infra.  [Omitted -- see printed edition.]



12. The plurality suggests that these communities were shed from

District 30 in a "suspect use of race as a proxy to further neighboring

incumbents' interests."  Ante at ___; see also id. at ___, n. *.  I had

thought, however, that the Court's concern in these cases was the

"resemblance to political apartheid" involved in the creation of

majority minority districts.  Shaw I, 509 U.S. at 647.  I do not see how

the decision to include minority communities in a neighboring majority

white district bears any resemblance to such "apartheid" or, for that

matter, how it has any relevance to the validity of the creation of a

district from which those minority communities have been excluded.  See

also infra at ___.



13. See, e.g., 3 Tr. 187 (testimony of Christopher Sharman:  "[A]ny time

you took part of a district away on one end, you would usually squeeze

or push the district out on another end; and in this case, most of the

time the district would get pushed to the north").



14. The author of the District Court opinion was herself aware of these

political realities.  See id. at 194 (Jones, J., noting that Johnson

didn't want anything to do with the Park Cities because she "[d]idn't

want competition from Ross Perot").  In light of this recognition, it is

difficult to understand why the District Court described District 30's

efforts to avoid that community as a contributing factor to the

allegedly race-based bizarreness of the district borders.  See 861

F.Supp. at 1337; ante at ___.



15. Because political boundaries are more closely packed in urban than

in rural areas, drawing lines based on such boundaries will almost

always require tighter twists and turns in urban districts than in rural

districts.  Significantly, the three districts struck down by the

District Court are the only three districts in the entire State with

population densities of over 2,000 persons per square mile.  See U.S.

Dept. of Commerce, Bureau of the Census, Population and Housing

Characteristics for Congressional Districts of the 103d Congress:  Texas

40-44 (Feb. 1993).  If enough empty land were added to these districts

that they matched the sparse densities of rural districts (such as

District 28, which was upheld by the District Court), their turns would

not appear so sharp, and the open space, without its demographic

implications, could smooth the deepest of the districts' notches.



16. As Democratic communities were identified, they had to be connected

with the core of the district.  Although Texas has no state statutory or

constitutional requirement to that effect, state legislators agreed that

each of the 30 districts should be entirely contiguous, permitting any

candidate, map in hand, to visit every residence in her district without

leaving it.



17. Incumbents influenced the shape of districts in other ways.  Both

District 30 and District 29, for instance, detoured to include portions

of the state legislative districts that were being represented by the

state legislators who hoped to run for Congress.  See, e.g., State's

Exh. 31 (showing that portion of Tarrant County included in District 30

had been part of Johnson's State Senate district).  In some cases,

legislators drew districts to avoid the residences of potential primary

challengers.  See 3 Tr. 192-193; 4 id. at 46.  Incumbents also sought to

include communities that they expected (or knew) to contain particularly

active supporters; this interest in "active" voters often trumped any

desire to ensure a particular racial makeup.  See 3 id. at 190; 4 id. at

40-41; 861 F.Supp. at 1320.



18. While two extremely noncompact majority Anglo districts in Texas

(Districts 3 and 25) might be able to blame part (though by no means

all) of their contortions on their contiguity with the majority minority

districts, District 6 has little excuse.  Although it shares a border

with District 30 for a short distance, that stretch is one of the

straightest in either of the districts, running almost entirely along

the county line through the Dallas-Fort Worth International Airport. 

See Appendix D, infra.  [Omitted -- see printed edition.]



As for the obligatory florid description:  District 6 has far less of an

identifiable core than any of the majority minority districts struck

down by the District Court.  To the extent that it "begins" anywhere, it

is probably near the home of incumbent Rep. Barton in Ennis, located

almost 40 miles southwest of Downtown Dallas.  From there, the district

winds across predominantly rural sections of Ellis County, finally

crossing into Tarrant County, the home of Fort Worth.  It skips across

two arms of Joe Pool Lake, noses its way into Dallas County, and then

travels through predominantly Republican suburbs of Fort Worth.  Nearing

the central city, the borders dart into the downtown area, then retreat

to curl around the city's northern edge, picking up the airport and

growing suburbs north of town.  Worn from its travels into the far

northwestern corner of the county (almost 70 miles, as the crow flies,

from Ennis), the district lines plunge south into Eagle Mountain Lake,

traveling along the waterline for miles, with occasional detours to

collect voters that have built homes along its shores.  Refreshed, the

district rediscovers its roots in rural Parker County, then flows back

toward Fort Worth from the southwest for another bite at Republican

voters near the heart of that city.  As it does so, the district narrows

in places to not much more than a football field in width.  Finally, it

heads back into the rural regions of its fifth county -- Johnson --

where it finally exhausts itself only 50 miles from its origin, but

hundreds of "miles apart in distance and worlds apart in culture." 

Miller, 515 U.S. at ___ (describing a similar combined rural/urban

district).



19. Seeking specific examples, the plurality makes much hay over a

portion of Collin County located just over the county line north of

Dallas.  See ante at ___.  There, District 30 excludes a portion of a

precinct that voted Democratic in 1990, and maps "exactly onto the only

area in the southern half of th[e] county with a [minority] percentage

population in excess of 50%."  Ante at ___.



The map to which the plurality refers, however, groups the minority

percentage by precinct, and since precincts are defined by the district

boundaries, it is no surprise that the district maps "exactly" onto the

precinct.  See App. 153.  (One might similarly argue that "District 30

maps exactly onto the only area in all of North Texas that is 50%

black," but such a statement reveals little about the underlying

demographics of specific sections of the district.)  The more telling

maps are the census block maps, which demonstrate that the Collin County

section of District 30 contains many more census blocks of less than 25%

minority population than it does blocks that are more than 50% minority.

 See State's Exhibits 45 and 46 (exhibit 45 is reproduced, in part, as

Appendix D, infra).  [Omitted -- see printed edition.]  Even if those

majority white blocks have relatively small populations, they were

nonetheless included, suggesting that the creation of the district was

not as single-mindedly focused on race as the Court and the District

Court assume.Even more significant is the fact that the new precinct

leaned overwhelmingly Democratic in the 1992 election, while the portion

of the precinct that was not included in District 30 voted

overwhelmingly Republican.  See State's Exh. 9B (Collin County).  While

the excluded portion of the 1990 precinct may have been dropped, in

part, to help comply with the State's goals under the Voting Rights Act,

it also involved a successful effort to maximize Democratic votes while

avoiding Republican votes.



20. See 861 F.Supp. at 1312 (Black population in Dallas County is

362,130); Bureau of Census, Population and Housing Unit Counts 185 (Oct.

1993) (total population of Dallas County is 1,852,810).



21. Several responses to the plurality's specific examples are worth

making, however.  In Collin County, the plurality relies on the fact

that the "combined African American and Hispanic" population in the

Collin County extremity of the northern appendage to District 30 is in

excess of 50%.  Ante at ___.  But District 30 was created with an eye to

a majority black population, rather than a majority minority population,

so the more relevant facts are that (i) African Americans make up only

19.8 percent of the Collin County appendage, App. 331, (ii) those

African Americans consist of only two-tenths of one percent of the

entire population in the District, ibid. and (iii) this appendage

contains more majority white census blocks than it does majority

minority census blocks, see State's Exh. 45.



The plurality also points out that a small portion of one of the

tentacles -- the one that extends west into Tarrant County -- contains

an African American majority.  Ante at ___.  It would be implausible to

claim, however, that race was the "predominant" reason that this

community was included in District 30.  First, the community had been

part of Senator Johnson's state legislative district, see n. 17, supra;

second, it also includes majority white census blocks; and third, the

total population in that portion of the district is less than 2,000

people.  App. 331.  Finally, and more important, the population of the

entire western tentacle (at the tip of which is the Tarrant County

community) is only 29% black, see State's Exh. 33 -- less than half the

proportion of minorities in the core of the district.



22. Indeed, if the "appendages" to District 30 reaching into neighboring

counties were cut off, the proportion of African Americans in the

resulting District would actually increase.  See App. 331.  As presently

constituted, District 30 includes 566,217 people, of which 283,225 (or

50.02%) are African American.  If the Tarrant County and Collin County

portions of the district were removed, the resulting district would have

557,218 people, of which 280,620 (or 50.36%) would be African American. 

While the resulting District would not include the "zero deviation"

necessary under Reynolds v. Sims and its progeny, see n. 10, supra, the

missing population could easily be acquired in majority black census

blocks adjacent to District 30's southern and eastern edge, thereby

increasing the proportion of black population still further.  Because

the alleged racial goals of the District could be achieved more

effectively by making the District more compact, I simply do not

comprehend how the Court can conclude that the effort to create a

majority minority district "predominated" over other, race-neutral

goals.



23. Testimony by individuals is relevant, but hardly dispositive

evidence of collective motivations.  See n. 9, supra.  It may be true

that the most important concern motivating Senator Johnson, the Chairman

of the Senate Districting Committee, was her desire to create the first

Congressional District in the history of the State in which African

Americans were in the majority.  Johnson never testified, however, that

racial considerations were the sole concern motivating the changes to

the shapes of the districts.  See, e.g., App. 454-456 (certain areas

that were minority communities were assigned to Anglo incumbents because

of incumbent power), id. at 459 ("just as 30 went looking for friendly

territory as well regardless of color, [the incumbents] went looking for

friendly territory regardless of color").  Since this testimony was not

only irrelevant to the  2 proceedings but arguably harmful to her claim

there that racial considerations had been taken into account, these

admissions are particularly telling.



To the extent that testimony of individual legislators is relevant, the

following statements from the floor of the Texas House confirm that many

legislators viewed these districts as political, not racial,

gerrymanders: This plan was drawn to protect incumbents. . . .  [I]n

order to protect an incumbent Dallas congressman and an incumbent

Houston congressman, county lines were not respected, urban boundaries

were not respected, precinct boundaries were not respected. Id. at

374-375 (statement of Rep. Ogden). With the adoption of this plan, you

will have 8 Republican Congressmen out of 30.  That's de facto

regression, and provides for less Republican representation in

Washington, D.C. Communities throughout the State are surgically split

in what appears to be illogical, irrational and erratic pattern[s].  But

if you look at election data throughout the State, you'll find that

these lines are very logical and very rational.  The lines have been

drawn, dissecting communities very creatively in order to pack

Republicans and maximize Democratic representation. Id. at 376

(statement of Rep. Gusendorf).  See also id. at 377-380 (statement of

Rep. Gusendorf illustrating the gerrymandering process by reference to

District 6, not a majority minority district).  These gerrymanders d[o]

not have to happen.  It has nothing to do with fairness.  It has nothing

to do with minority representation, because if we were really concerned

about minority representation, we would have drawn this map in such a

way that the minorities were considered, and not simply to elect

Democrats. Id. at 384 (statement of Rep. Hill).



24. It is ironic and slightly unfair for the plurality and District

Court to use the State's  5 submission and Congresswoman Johnson's

testimony in a  2 challenge to the congressional district as evidence

against them in this case.  See, e.g., 861 F.Supp. at 1319-1321,

1338-1339; ante at ___.  Both of those proceedings required the State to

assure the Attorney General and a federal court, respectively, that the

State had adequately considered the interests of minority voters in the

1991 redistricting process.  Under such circumstances, it is not at all

surprising that the relevant declarant would limit his or her comments

to the role that race played in the redistricting process, for other

considerations were largely irrelevant (the District Court's opinion to

the contrary notwithstanding, see 861 F.Supp. at 1339).



25. As JUSTICE GINSBURG noted in her dissent in Miller, "ethnicity

itself can tie people together" in communities of interest.  Miller, 515

U.S. at ___; see also Rogers v. Lodge, 458 U.S. 613, 651 (1982)

(STEVENS, J., dissenting) ("Whenever identifiable groups in our society

are disadvantaged, they will share common political interests and tend

to vote as a `bloc'").  Furthermore, it may be that the very fact of

racial block voting, a prerequisite to  2 liability, see Thornburgh v.

Gingles, 478 U.S. 30, 51 (1986), (and, under the Court's recent

jurisprudence, to the voluntary formation of a majority minority

district), demonstrates the presence of a minority community.  While

communities based on race may merit a more skeptical review to ensure

that a bond, rather than mere stereotyping, ties the community, see 861

F.Supp. at 1338, recognition of such a community in an electoral

district certainly could, in certain circumstances, serve as a

legitimate race-neutral explanation for particularly odd district

shapes.  By suggesting the contrary, I believe that the District Court

erred.  See ibid; post at ___ (SOUTER, J., dissenting).



26. The District Court's legal analysis was probably flawed in part

because its decision was issued before this Court announced its opinion

in Miller.



27. While it may be that the political gerrymandering in this case is

"different in degree" from that previously recognized, 861 F.Supp. at

1334, I do not believe that the reference in Shaw I and Miller to

"traditional" districting principles, see Shaw I, 509 U.S. at 642;

Miller, 515 U.S. at ___, was intended to prohibit a State from changing

the process or policies underlying the complex negotiating process that

is modern redistricting.



28. The plurality expresses particular concern over the use of computer

programs, particularly the availability of block-by-block racial data,

and argues that the State's effort to "compile[] detailed racial data,"

ante at ___, is evidence of the controlling role of race in the

computer-dominated process of redistricting.  See ante at ___; 861

F.Supp. at 1318-1319.  It is worth noting, however, that the State made

no particular "effort" to gather this data; it was included, along with

similarly detailed information about sex, age, and income levels, in the

data set provided by the Census Bureau and imported wholesale into the

State's redistricting computers.  Cf. Shaw, 861 F.Supp. at 457. 

Furthermore, even if the computer was used to fine tune the district

lines to ensure that minority communities were included in District 30

(rather than individualized requests from candidates and their staffers

on the basis of block-level data, see supra at ___), such a technique

amounts to little more than the use of a particularly efficient and

accurate means of ensuring that the intended nature of the district was

not undermined as incumbency protection forced it out of a compact

district.  I do not suggest that the end can always justify the means,

but if those means are no more invidious than the end itself, I do not

understand why their use should affect the analysis.  I would not

condemn state legislation merely because it was based on accurate

information.



29. A prediction based on a racial characteristics is not necessarily

more reliable than a prediction based on some other group

characteristic.  Nor, since a legislator's ultimate purpose in making

the prediction is political in character, is it necessarily more

invidious or benign than a prediction based on other group

characteristics.  In the line-drawing process, racial, religious,

ethnic, and economic gerrymanders are all species of political

gerrymanders. Mobile v. Bolden, 446 U.S. 55, 88 (1980) (STEVENS, J.,

concurring in judgment) (footnote omitted).



To the extent that a political prediction based on race is incorrect,

the voters have an entirely obvious way to ensure that such

irrationality is not relied upon in the future:  vote for a different

party.  A legislator relying on racial demographics to ensure his or her

election will learn a swift lesson if the presumptions upon which that

reliance was based are incorrect.



30. I find it particularly ironic that the Court considers the use of

race verboten in this benign context, while the Court just recently, on

the basis of evidence that, inter alia, "[m]ore than 90% of the persons

sentenced in 1994 for crack cocaine trafficking were black," dismissed

out-of-hand the Ninth Circuit's assumption that "people of all races

commit all types of crimes."  United States v. Armstrong, 517 U.S. ___,

___ (1996).  The Ninth Circuit's conclusion, it seems to me, is a model

of the sort of race-neutral decisionmaking that this Court insists

should be a part of constitutional decisionmaking processes.



31. Although I conclude that no reasonable interpretation of the record

would require the application of strict scrutiny to District 30, I

believe for the reasons that follow that it, too, would survive strict

scrutiny if it were to be subject to that level of review.



32. While I believe that the evidence supporting the State's conclusions

in this regard is stronger than that suggested by the plurality or

JUSTICE KENNEDY in his concurring opinion, I will simply assume

arguendo, as the plurality does, that the State had a reasonable fear of

liability under  2.  See also supra at ___.



33. Even if the Court in Shaw II is correct in asserting that North

Carolina's District 12 would not have allowed the State to avoid

liability under  2, see ante at ___, no such plausible argument could be

made in this case.  The core of District 30, for instance, contains more

than half of all the African American population in the District, and

coincides precisely with the heart of the compact community that the

State reasonably believes would give rise to a  2 violation were it not

placed in a majority minority district.  The same facts are true with

respect to the Houston districts.



34. The difficulty of balancing between these competing legal

requirements will only be exacerbated by the ability of litigants (and

courts) to use evidence proffered in defense by the State or its actors

in one context as evidence against the State in another.  See n. 24,

supra.  While there is nothing wrong with using prior inconsistent

statements (to the extent that they really are inconsistent), States

will be all the more unwilling to enter into the process at all, given

the certainty that they will be subject to suits in which evidence

offered in one as defense will be fodder for the plaintiffs in another.



35. The contrary is also possible, of course.  Perhaps the burgeoning

role of federal courts in this process, along with their relative

isolation from the political pressures that motivate legislatures to

bend district lines, will mean that there will actually be fewer

politically gerrymandered districts.  Regardless of whether political

gerrymanders are more or less prevalent after our decisions today, my

point is the same:  the Court has its heirarchy of values upside-down.



36. My view that a State may act unconstitutionally by gerrymandering to

minimize the influence of a group on the political process is consistent

with the belief that there is no constitutional error in the drawing of

district lines based on benign racial considerations.  As Justice Powell

noted in his opinion in Davis v. Bandemer, 478 U.S. at 165, there is a

sharp distinction between "gerrymandering in the `loose' sense" (i.e.,

the drawing of district lines to advance general political and social

goals), and "gerrymandering that amounts to unconstitutional

discrimination" (i.e., the drawing of district lines for the sole

purpose of "`occupy[ing] a position of strength at a particular time, or

to disadvantage a politically weak segment of the community'"), id. at

164 (citing Karcher, 462 U.S. at 748 (STEVENS, J., concurring)).  See

also 478 U.S. at 125, n. 9 ("[A] preference for nonpartisan as opposed

to partisan gerrymanders. . . .  merely recognizes that nonpartisan

gerrymanders in fact are aimed at guaranteeing rather than infringing

fair group representation").  While I believe that allegations of

discriminatory intent and impact, if proved, should give rise to a

constitutional violation, Shaw, Miller, and this case, all involve

allegations of both impact and intent that are far more diffuse than the

allegations to which we have traditionally directed our most rigorous

review.  See Shaw II, ante, at ___ (STEVENS, J., dissenting); cf.

Gomillion v. Lightfoot,364 U.S. 339 (1960).  Limiting the constitutional

ban on gerrymandering to those claims alleging that a specific group (as

opposed to every group) has been harmed would be far more consistent

with prior precedent than the Court's still-developing jurisprudence of

racial gerrymandering.



37. Compare 51 Congressional Quarterly 10 (1993) (list of African

Americans who have served in Congress through the end of 1992) and

Supplement to 52 Congressional Quarterly 10 (Nov. 12, 1994) (listing

minorities in the 104th Congress), with bi-yearly publications of The

Almanac of American Politics (published 1975-present).



38. D. Bositis, Joint Center for Political and Economic Studies, African

Americans & the 1994 Midterms, 22 (rev. May 1995).  Fifteen black

candidates ran for office in majority white districts.  Ibid. SOUTER,

J., dissenting (Footnotes)



1. See, e.g., Growe v. Emison, 507 U.S. 25, 34 (1993) ("the Constitution

leaves with the States primary responsibility for apportionment of their

federal congressional and state legislative districts") (citing

U.S.Const., Art. I,  2); Voinovich v. Quilter, 507 U.S. 146, 156 (1993);

Reynolds v. Sims, 377 U.S. 533, 586 (1964).



2. Even in the no longer controversial instance of the one-person,

one-vote rule, the adequacy of justification and standard was subject to

sharp dispute, and some of the Court's best minds expressed principled

hesitation to go even this far into what has been called the political

thicket, see Reynolds, supra at 615 (Harlan, J., dissenting) ("The

Court's elaboration of its new `constitutional' doctrine indicates how

far-and how unwisely-it has strayed from the appropriate bounds of its

authority.  The consequence of today's decision is that in all but the

handful of States which may already satisfy the new requirements the

local District Court or, it may be, the state courts, are given blanket

authority and the constitutional duty to supervise apportionment of the

State Legislatures.  It is difficult to imagine a more intolerable and

inappropriate interference by the judiciary with the independent

legislatures of the States"); Baker v. Carr, 369 U.S. 186, 267 (1962)

(Frankfurter, J., dissenting) ("The Court's authority -- possessed of

neither the purse nor the sword -- ultimately rests on sustained public

confidence in its moral sanction.  Such feeling must be nourished by the

Court's complete detachment, in fact and in appearance, from political

entanglements and by abstention from injecting itself into the clash of

political forces in political settlements").



3. As Professor Issacharoff notes, our vote-dilution cases acknowledged

that the right to cast an effective ballot implied more than simply the

equal weighting of all votes. . . .   To be effective, a voter's ballot

must stand a meaningful chance of effective aggregation with those of

like-minded voters to claim a just share of electoral results.  For this

reason, a sophisticated right to genuinely meaningful electoral

participation must be evaluated and measured as a group right. . . .

Issacharoff, Groups and the Right to Vote, 44 Emory L.J. 869, 883

(1995); see also Davidson, The Recent Revolution in Voting Rights Law

Affecting Racial and Language Minorities, in Quiet Revolution in the

South:  The Impact of the Voting Rights Act, 1965-1990, p. 23 (C.

Davidson & B. Grofman eds. 1994) ("Ethnic or racial vote dilution takes

place when a majority of voters, by bloc voting for its candidates in a

series of elections, systematically prevents an ethnic minority from

electing most or all of its preferred candidates. . . .   Vote dilution

not only can deprive minority voters of the important symbolic

achievement of being represented by preferred members of their own

group, it can deprive them of a committed advocate in councils of

government . . . [and] of the substantial benefits that government

bestows . . .").



4. See Pildes, The Politics of Race, 108 Harv.L.Rev. 1359, 1369 (1995)

(reviewing Quiet Revolution in the South:  The Impact of the Voting

Rights Act, 1965-1990 (C. Davidson & B. Grofman eds. 1994)) (noting that

studies of southern States demonstrate that, as a result of racial bloc

voting, "the probability of a district's electing a Black representative

was less than 1% regardless of a district's median family income, its

percentage of high school graduates; its proportion of residents who

were elderly, urban, foreign-born, or who had been residents of the

state for more than five years; or the region of the country in which

the district was located"); id. at 1375 (finding similar results

nationwide).  There is, of course, reason to hope that conditions are

improving.  See infra at ___ (discussing elections in which crossover

voting favors minority incumbents and in which racial issues have not

played a significant role in the outcome).  As I discuss in detail in

___Part IV, infra, I believe that these improvements may be attributed

in large part to the effect of the Voting Rights Act, and thus to our

willingness to allow race-conscious districting in certain situations.



5. I recognize, of course, that elsewhere we have imposed prohibitions

on the consideration of race, but contexts are crucial in determining

how we define "equal opportunity."  Consider our decisions on preemptory

jury challenges.  There, as in politics, one race may not have had a

fair shake from the other.  But the differences between jury

decisionmaking and political decisionmaking are, I believe, important

ones.  Politics includes choices between different sets of social

values, choices that may ultimately turn on the ability of a particular

group to enforce its demands through the ballot box.  Jury

decisionmaking is defined as a neutral process, the impartial

application of law to a set of objectively discovered facts.  To require

racial balance in jury selection would risk redefining the jury's role. 

Without denying the possibility that race, especially as an imperfect

proxy for experience, makes a difference injury decisionmaking (and, in

some cases, legitimately so), it seems to me that the better course is

to ensure a fair shake by denying each side the right to make race-based

selections.  The cost of the alternative is simply too great.  It is an

entirely different matter, however, to recognize that racial groups,

like all other groups, play a real and legitimate role in political

decisionmaking.  It involves nothing more than an acknowledgement of the

reality that our concepts of common interest, geography, and personal

allegiances are in many places simply too bound up with race to deny

some room for a theory of representative democracy allowing for the

consideration of racially conceived interests.  A majority of the Court

has never disagreed in principle with this position.  See, e.g., Shaw I,

509 U.S. 630, 642 (1993) (noting that race-conscious redistricting is

not always unconstitutional); Miller v. Johnson, 515 U.S. ___, ___

(1995) (O'CONNOR, J., concurring) (consideration of race in the

redistricting process does not always violate the Constitution); ante at

___ (noting that strict scrutiny does "not apply merely because

redistricting is performed with consciousness of race").



6. Leaving aside the question whether such a catholic injury can be a

violation of the Equal Protection Clause, there still might be a use of

race that harms all district voters because it is used to an

unreasonable degree.  But see Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc., 454 U.S. 464,

489 (1982).  But the Court has never succeeded in identifying how much

is too much, having adopted a "predominant purpose" test that amounts to

a practical repudiation of any hope of devising a workable standard. 

See ___Part I-C, infra.



7. See Cannon v. North Carolina State Bd. of Ed., 917 F. Supp 387, 391

(EDNC 1996) (describing this "difficult area of the law" and predicting

that it will "gain better definition by reason of an imminent decision

by the Supreme Court of the United States [in Shaw II]"); Briffault,

Race and Representation After Miller v. Johnson, 1995 U.Chi.Legal Forum

23, 50  (1995) ("[I]t is unclear what work the adjectives `predominant'

and `overriding' do in the Supreme Court's test"); Karlan, Post-Shaw Era

287 (Miller "further unsettled the already unclear roadmap" of Shaw I);

Issacharoff, Constitutional Contours 60 ("the Court's facile reliance on

standards of causation vaguely reminiscent of tort law does nothing to

defer confronting the hard issue of acceptable standards of conduct").



8. Even in areas where there is no racial bloc voting, the application

of certain traditional districting principles may involve a legitimate

consideration of race.



9. See Karst, Paths to Belonging:  The Constitution and Cultural

Identity, 64 N.C.L.Rev. 303, 347, 350 (1986) ("[T]he surest path to

assimilation is participation in the larger society's activities and

institutions.  Voting is not just an expression of political

preferences; it is an assertion of belonging to a political community. .

. ."  "When legislative districts are defined in ways that exclude the

possibility of significant minority representation, potential minority

voters see that their votes are not worth casting.  Yet electoral

mobilization is vital . . . to the group members' perceptions that they

belong to the community"); Walzer, Pluralism in Political Perspective,

in The Politics of Ethnicity 1, 18 (S. Thernstrom, A. Orlov, & O.

Handlin eds. 1982) ("political life is in principle open, and this

openness has served to diffuse the most radical forms of ethnic

competition"); Kantowicz, Voting and Parties, in The Politics of

Ethnicity, supra at 29, 45 (noting that political successes and

recognition made members of an ethnic group "feel that it belonged in

the wider society . . . [and brought] them inside the political

system"); Mintz, Ethnicity and Leadership:  An Afterword, in Ethnic

Leadership in America 198 (J. Higham ed. 1978) (concluding after

reviewing several studies of ethnic politics that "we ignore at our

peril the need to understand those processes by which being

short-changed . . . politically can became any group's motto or battle

standard"); cf. Karlan, Our Separatism 102 ("two generations of

communist suppression and ethnic and religious tension in Yugoslavia did

little to ensure stability, tolerance, or integration").



10. See, e.g., Nolan, Boston Mayoral Race Could Break Dominance of

Ethnicity, Boston Globe, Apr. 9, 1993, p. 40 ("When Boston finishes

choosing a new mayor, the city may discover that after centuries of

immigration, ethnicity is no longer the dominant factor in its

politics"); Black, Once-Solid Voting Blocks are Splitting in Boston,

Boston Globe, Nov. 1, 1993, p. 1 (commenting that voters consider

Menino's Italian descent "little more than a historical footnote" and

observing that "ethnic voting has faded . . . [a]s various groups enter

the American economic and social mainstream . . . [and] gain some

semblance of [political] power"); D'Innocenzo, Gulotta Can't Count on

Ethnicity, Newsday, Oct. 19, 1993, p. 97(noting that "[t]he vowel at the

end of Tom Gulotta's name may not matter in this year's county executive

election as it once did" because "Italian Americans in Nassau County are

likely to go to the polls with more than ethnic favoritism in mind";

attributing the decline in ethnicity-based voting to the fact that

"Nassau Italian Americans feel less marginali[zed] as an ethnic group").

