Shaw v. Hunt

No. 94-923

Argued December 5, 1995

Decided June 13, 1996 *

[U.S. Reports citation not yet available]

APPEAL FROM THE DISTRICT COURT FOR THE

EASTERN DISTRICT OF NORTH CAROLINA

Syllabus



Earlier in this case, in Shaw v. Reno, 509 U.S. ___, this Court held

that appellants, whose complaint alleged that North Carolina had

deliberately segregated voters by race when it created two

bizarre-looking majority black congressional districts, Districts 1 and

12, had stated a claim for relief under the Equal Protection Clause of

the Fourteenth Amendment.  The Court remanded for further consideration

by the District Court, which held that, although the North Carolina

redistricting plan did classify voters by race, the classification

survived strict scrutiny, and therefore was constitutional because it

was narrowly tailored to further the State's compelling interests in

complying with  2 and 5 of the Voting Rights Act of 1965.



Held:



1.  Only the two appellants who live in District 12 have standing to

continue this lawsuit, and only with respect to that district.  The

remaining appellants, who do not reside in either of the challenged

districts and have not provided specific evidence that they personally

were assigned to their voting districts on the basis of race, lack

standing.  See United States v. Hays, 515 U.S. ___.  Pp. ___.



2.  The North Carolina plan violates the Equal Protection Clause because

the State's reapportionment scheme is not narrowly tailored to serve a

compelling state interest.  Pp. ___.



(a) Strict scrutiny applies when race is the "predominant" consideration

in drawing district lines such that "the legislature subordinates

race-neutral districting principles . . . to racial considerations." 

Miller v. Johnson, 515 U.S. ___, ___.  The District Court's finding that

the North Carolina General Assembly "deliberately drew" District 12 so

that it would have an effective voting majority of black citizens, when

read in the light of the evidence as to the district's shape and

demographics and the legislature's objective, comports with the Miller

standard.  In order to justify its redistricting plan, therefore, the

State must show not only that the plan was in pursuit of a compelling

state interest, but also that it was narrowly tailored to achieve that

interest.  Id. at ___.  Pp. 4-8.



(b) None of the three separate "compelling interests" to which appellees

point suffices to sustain District 12.  First, the District Court found

that the State's claimed interest in eradicating the effects of past

discrimination did not actually precipitate the use of race in the

redistricting plan, and the record does not establish that that finding

was clearly erroneous.  Second, the asserted interest in complying with 

5 of the Voting Rights Act did not justify redistricting here, since

creating an additional majority black district, as urged by the Justice

Department before it granted preclearance, was not required under a

correct reading of  5.  See Miller, 515 U.S. at ___ - ___.  This Court

again rejects the Department's expansive reading of  5 and of its own

authority thereunder as requiring States to maximize the number of

majority-minority districts wherever possible.  See, e.g., id. at ___. 

Third, District 12, as drawn, is not a remedy narrowly tailored to the

State's professed interest in avoiding liability under  2 of the Act,

which, inter alia, prohibits dilution of the voting strength of members

of a minority group.  District 12 could not remedy any potential  2

violation, since the minority group must be shown to be "geographically

compact" to establish  2 liability, see, e.g., Thornburg v. Gingles, 478

U.S. 30, 50, and it cannot reasonably be suggested that District 12

contains a "geographically compact" population of any race.  Appellees

are singularly unpersuasive when they argue that a majority-minority

district may be drawn anywhere if there is a strong basis in evidence

for concluding that a  2 violation exists somewhere in the State.  A

district so drawn could not avoid  2 liability, which targets vote

dilution injury to individuals in a particular area, not to the minority

as a group.  Just as in Miller, this Court does not here reach the

question whether compliance with the Act, on its own, can be a

compelling state interest under the proper circumstances.  Pp. ___.



861 F.Supp. 408, reversed.



REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR,

SCALIA, KENNEDY, and THOMAS, JJ., joined.  STEVENS, J., filed a

dissenting opinion, in which GINSBURG and BREYER, JJ., joined as to

Parts II, III, IV, and V.  SOUTER, J., filed a dissenting opinion, in

which GINSBURG and BREYER, JJ., joined. REHNQUIST, J., lead opinion



CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.



This case is here for a second time.  In Shaw v. Reno, 509 U.S. ___

(1993) (Shaw I), we held that plaintiffs whose complaint alleged that

the deliberate segregation of voters into separate and bizarre-looking

districts on the basis of race stated a claim for relief under the Equal

Protection Clause of the Fourteenth Amendment.  We remanded the case for

further consideration by the District Court.  That court held that the

North Carolina redistricting plan did classify voters by race, but that

the classification survived strict scrutiny, and therefore did not

offend the Constitution.  We now hold that the North Carolina plan does

violate the Equal Protection Clause because the State's reapportionment

scheme is not narrowly tailored to serve a compelling state interest.



The facts are set out in detail in our prior opinion, and we shall only

summarize them here.  After the 1990 census, North Carolina's

congressional delegation increased from 11 to 12 members.  The State

General Assembly adopted a reapportionment plan, Chapter 601, that

included one majority black district, District 1, located in the

northeastern region of the State.  1991 N.C.Sess.Laws, ch. 601.  The

legislature then submitted the plan to the Attorney General of the

United States for preclearance under  5 of the Voting Rights Act of

1965, 79 Stat. 439, as amended, 42 U.S.C.  1973c (1988 ed.).  The

Assistant Attorney General for Civil Rights, acting on the Attorney

General's behalf, objected to the proposed plan because it failed "to

give effect to black and Native American voting strength" in "the

south-central to southeastern part of the state" and opined that the

State's reasons for not creating a second majority-minority district

appeared "to be pretextual."  App. 151-153.  Duly chastened, the

legislature revised its districting scheme to include a second majority

black district.  1991 N.C.Extra Sess.Laws, ch. 7.  The new plan, Chapter

7, located the minority district, District 12, in the north-central or

Piedmont region, not in the south-central or southeastern region

identified in the Justice Department's objection letter.  The Attorney

General nonetheless precleared the revised plan.



By anyone's measure, the boundary lines of Districts 1 and 12 are

unconventional.  A map portrays the districts' deviance far better than

words, see the Appendix to the opinion of the Court in Shaw I, supra,

but our prior opinion describes them as follows:



The first of the two majority black districts . . . is somewhat

hook-shaped.  Centered in the northeast portion of the State, it moves

southward until it tapers to a narrow band; then, with finger-like

extensions, it reaches far into the southernmost part of the State near

the South Carolina border. . . .



The second majority black district, District 12, is even more unusually

shaped.  It is approximately 160 miles long and, for much of its length,

no wider than the [Interstate]-85 corridor.  It winds in snake-like

fashion through tobacco country, financial centers, and manufacturing

areas "until it gobbles in enough enclaves of black neighborhoods." Shaw

I, supra, at ___ (citation omitted).



Five North Carolinians commenced the present action in the United States

District Court for the Eastern District of North Carolina against

various state officials.  Following our reversal of the District Court's

dismissal of their complaint in Shaw I, the District Court allowed a

number of individuals to intervene, 11 on behalf of the plaintiffs and

22 for the defendants.  After a 6-day trial, the District Court

unanimously found "that the Plan's lines were deliberately drawn to

produce one or more districts of a certain racial composition."  861

F.Supp. 408, 417, 473-474 (1994).  A majority of the court held that the

plan was constitutional, nonetheless, because it was narrowly tailored

to further the State's compelling interests in complying with  2 and 5

of the Voting Rights Act, 42 U.S.C.  1973, 1973c.  861 F.Supp. at 474. 

The dissenting judge disagreed with that portion of the judgment.  We

noted probable jurisdiction.  515 U.S. ___ (1995).



As a preliminary matter, appellees challenge appellants' standing to

continue this lawsuit.  In United States v. Hays, 515 U.S. ___ (1995),

we recognized that a plaintiff who resides in a district which is the

subject of a racial gerrymander claim has standing to challenge the

legislation which created that district, but that a plaintiff from

outside that district lacks standing absent specific evidence that he

personally has been subjected to a racial classification.  Two

appellants, Ruth Shaw and Melvin Shimm, live in District 12, and thus

have standing to challenge that part of Chapter 7 which defines District

12.  See Miller v. Johnson, 515 U.S. ___, ___ (1995).  The remaining

appellants do not reside in District 1, however, and they have not

provided specific evidence that they personally were assigned to their

voting districts on the basis of race.  Therefore, we conclude that only

Shaw and Shimm have standing and only with respect to District 12.



We explained in Miller v. Johnson that a racially gerrymandered

districting scheme, like all laws that classify citizens on the basis of

race, is constitutionally suspect.  Id. at ____; see also Shaw I, 509

U.S. at ___; Adarand Constructors, Inc. v. Pena, 515 U.S. ___ (1995). 

This is true whether or not the reason for the racial classification is

benign or the purpose remedial.  Shaw I, supra, at ___; Adarand, supra,

at ___.  Applying traditional equal protection principles in the voting

rights context is "a most delicate task," Miller, supra, at ___,

however, because a legislature may be conscious of the voters' races

without using race as a basis for assigning voters to districts.  Shaw

I, supra, at ____; Miller, 515 U.S. at ___ .  The constitutional wrong

occurs when race becomes the "dominant and controlling" consideration. 

Id. at ___.



The plaintiff bears the burden of proving the race-based motive and may

do so either through "circumstantial evidence of a district's shape and

demographics" or through "more direct evidence going to legislative

purpose."  Miller, supra, at ___.  After a detailed account of the

process that led to enactment of the challenged plan, the District Court

found that the General Assembly of North Carolina "deliberately drew"

District 12 so that it would have an effective voting majority of black

citizens.  861 F.Supp. at 473.



Appellees urge upon us their view that this finding is not phrased in

the same language that we used in our opinion in Miller v. Johnson,

supra, where we said that a plaintiff must show "that race was the

predominant factor motivating the legislature's decision to place a

significant number of voters within or without a particular district." 

Id. at ___.



The District Court, of course, did not have the benefit of our opinion

in Miller at the time it wrote its opinion.  While it would have been

preferable for the court to have analyzed the case in terms of the

standard laid down in Miller, that was not possible.  This circumstance

has no consequence here because we think that the District Court's

findings, read in the light of the evidence that it had before it,

comport with the Miller standard.



First, the District Court had evidence of the district's shape and

demographics.  The court observed "the obvious fact" that the district's

shape is "highly irregular and geographically noncompact by any

objective standard that can be conceived."  861 F.Supp. at 469.  In

fact, the serpentine district has been dubbed the least geographically

compact district in the Nation.  App. 332.



The District Court also had direct evidence of the legislature's

objective.  The State's submission for preclearance expressly

acknowledged that the Chapter 7's overriding purpose was to comply with

the dictates of the Attorney General's December 18, 1991, letter and to

create two congressional districts with effective black voting

majorities. App. 162 (emphasis added).  This admission was confirmed by

Gerry Cohen, the plan's principal draftsman, who testified that creating

two majority black districts was the "principal reason" for Districts 1

and 12.  Id. at 675; Tr. 514.  Indeed, appellees in their first

appearance before the District Court "formally concede[d] that the state

legislature deliberately created the two districts in a way to assure

black-vote majorities," Shaw v. Barr, 808 F.Supp. 461, 470 (EDNC 1992),

and that concession again was credited by the District Court on remand,

861 F.Supp. at 473-474.  See also Shaw I, supra, at ___ (White, J.,

dissenting) ("The State has made no mystery of its intent, which was to

respond to the Attorney General's objections by improving the minority

group's prospects of electing a candidate of its choice" (citation

omitted)).  Here, as in Miller, we fail to see how the District Court

could have reached any conclusion other than that race was the

predominant factor in drawing [the challenged district]. Miller, supra,

at ___.



In his dissent, JUSTICE STEVENS argues that strict scrutiny does not

apply where a State "respects" or "compl[ies] with traditional

districting principles."  Post at ___ ("race-based districting which

respects traditional districting principles does not give rise to

constitutional suspicion"), ___ ("Miller demonstrates that, although

States may avoid strict scrutiny by complying with traditional

districting principles . . . ").  That, however, is not the standard

announced and applied in Miller, where we held that strict scrutiny

applies when race is the "predominant" consideration in drawing the

district lines such that "the legislature subordinate[s] race-neutral

districting principles . . . to racial considerations."  Miller, supra,

at ___.  (JUSTICE STEVENS articulates the correct standard in his

dissent, post at ___, but he fails to properly apply it.)  The Miller

standard is quite different from the one that JUSTICE STEVENS advances,

as an examination of the dissent's reasoning demonstrates.  The dissent

explains that "two race-neutral, traditional districting criteria" were

at work in determining the shape and placement of District 12, and from

this suggests that strict scrutiny should not apply.  Post at ___.  We

do not quarrel with the dissent's claims that, in shaping District 12,

the State effectuated its interest in creating one rural and one urban

district, and that partisan politicking was actively at work in the

districting process.  That the legislature addressed these interests

does not in any way refute the fact that race was the legislature's

predominant consideration.  Race was the criterion that, in the State's

view, could not be compromised; respecting communities of interest and

protecting Democratic incumbents came into play only after the

race-based decision had been made.



Racial classifications are antithetical to the Fourteenth Amendment,

whose "central purpose" was "to eliminate racial discrimination

emanating from official sources in the States."  McLaughlin v. Florida,

379 U.S. 184, 192 (1964); Richmond v. J. A. Croson Co., 488 U.S. 469,

491 (1989) (opinion of O'CONNOR, J.) ("[T]he Framers of the Fourteenth

Amendment . . . desired to place clear limits on the States' use of race

as a criterion for legislative action, and to have the federal courts

enforce those limitations").  While appreciating that a racial

classification causes "fundamental injury" to the "individual rights of

a person," Goodman v. Lukens Steel Co., 482 U.S. 656, 661 (1987), we

have recognized that, under certain circumstances, drawing racial

distinctions is permissible where a governmental body is pursuing a

"compelling state interest."  A State, however, is constrained in how it

may pursue that end:  "[T]he means chosen to accomplish the State's

asserted purpose must be specifically and narrowly framed to accomplish

that purpose."  Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280 (1986)

(opinion of Powell, J.).  North Carolina, therefore, must show not only

that its redistricting plan was in pursuit of a compelling state

interest, but also that "its districting legislation is narrowly

tailored to achieve [that] compelling interest."  Miller, 515 U.S. at

___.



Appellees point to three separate compelling interests to sustain

District 12:  to eradicate the effects of past and present

discrimination; to comply with  5 of the Voting Rights Act; and to

comply with  2 of that Act.  We address each in turn.



A State's interest in remedying the effects of past or present racial

discrimination may in the proper case justify a government's use of

racial distinctions.  Croson, 488 U.S. at   For that interest to rise to

the level of a compelling state interest, it must satisfy two

conditions.  First, the discrimination must be "`identified

discrimination.'"  Id. at 499, 500, 505, 507, 509.  "While the States

and their subdivisions may take remedial action when they possess

evidence" of past or present discrimination, "they must identify that

discrimination, public or private, with some specificity before they may

use race-conscious relief."  Id. at 504.  A generalized assertion of

past discrimination in a particular industry or region is not adequate

because it "provides no guidance for a legislative body to determine the

precise scope of the injury it seeks to remedy."  Id. at 498 (opinion of

O'CONNOR, J.).  Accordingly, an effort to alleviate the effects of

societal discrimination is not a compelling interest.  Wygant, supra, at

 276, 288.  Second, the institution that makes the racial distinction

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

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

program," 476 U.S. at 277 (plurality opinion) (emphasis added).



In this case, the District Court found that an interest in ameliorating

past discrimination did not actually precipitate the use of race in the

redistricting plan.  While some legislators invoked the State's history

of discrimination as an argument for creating a second majority black

district, the court found that these members did not have enough voting

power to have caused the creation of the second district on that basis

alone.  861 F.Supp. at 471.



Appellees, to support their claim that the plan was drawn to remedy past

discrimination, rely on passages from two reports prepared for this

litigation by an historian and a social scientist.  Brief for Appellees

Gingles et al. 40-44, citing H. Watson, Race and Politics in North

Carolina, 1865-1994, App. 610-624 (excerpts) and J. Kousser, After 120

Years:  Redistricting and Racial Discrimination in North Carolina, id.

at 602-609 (excerpts).  Obviously these reports, both dated March, 1994,

were not before the General Assembly when it enacted Chapter 7.  And

there is little to suggest that the legislature considered the

historical events and social science data that the reports recount,

beyond what individual members may have recalled from personal

experience.  We certainly cannot say on the basis of these reports that

the District Court's findings on this point were clearly erroneous.



Appellees devote most of their efforts to arguing that the race-based

redistricting was constitutionally justified by the State's duty to

comply with the Voting Rights Act.  The District Court agreed, and held

that compliance with  2 and 5 of the Act could be, and in this case was,

a compelling state interest.  861 F.Supp. at 437.  In Miller, we

expressly left open the question whether, under the proper

circumstances, compliance with the Voting Rights Act, on its own, could

be a compelling interest.  Miller, 515 U.S. at ___ ("Whether or not in

some cases compliance with the Voting Rights Act, standing alone, can

provide a compelling interest independent of any interest in remedying

past discrimination . . . ").  Here, once again, we do not reach that

question, because we find that creating an additional majority black

district was not required under a correct reading of  5, and that

District 12, as drawn, is not a remedy narrowly tailored to the State's

professed interest in avoiding  2 liability.



With respect to  5 of the Voting Rights Act, we believe our decision in

Miller forecloses the argument, adopted by the District Court, that

failure to engage in the race-based districting would have violated that

section.  In Miller, we considered an equal protection challenge to

Georgia's Eleventh Congressional District.  As appellees do here,

Georgia contended that its redistricting plan was necessary to meet the

Justice Department's preclearance demands.  The Justice Department had

interposed an objection to a prior plan that created only two

majority-minority districts.  We held that the challenged congressional

plan was not required by a correct reading of  5, and therefore

compliance with that law could not justify race-based districting. 

Miller, supra, at ___ ("[C]ompliance with federal antidiscrimination

laws cannot justify race-based districting where the challenged district

was not reasonably necessary under a constitutional reading and

application of those laws").



We believe the same conclusion must be drawn here.  North Carolina's

first plan, Chapter 601, indisputably was ameliorative, having created

the first majority black district in recent history.  Thus, that plan,

"`even if [it] fall[s] short of what might be accomplished in terms of

increasing minority representation,'" "`cannot violate  5 unless the new

apportionment itself so discriminates on the basis of race or color as

to violate the Constitution.'"  Miller, supra, at ___, quoting Days,

Section 5 and the Role of the Justice Department, in B. Grofman & C.

Davidson, Controversies in Minority Voting 56 (1992), and Beer v. United

States, 425 U.S. 130, 141 (1976).



As in Miller, the United States relies on the purpose prong of  5 to

explain the Department's preclearance objections, alleging that North

Carolina, for pretextual reasons, did not create a second

majority-minority district.  Brief for United States as Amicus Curiae

24.  We again find the Government's position "insupportable."  Miller,

supra, at ___.  The General Assembly, in its submission filed with

Chapter 601, explained why it did not create a second minority district;

among its goals were to keep precincts whole, to avoid dividing counties

into more than two districts, and to give black voters a fair amount of

influence by creating at least one district that was majority black in

voter registration and by creating a substantial number of other

districts in which black voters would exercise a significant influence

over the choice of congressmen. App. 142.  The submission also explained

in detail the disadvantages of other proposed plans.  See, e.g. id. at

139, 140, 143 (Balmer Congress 6.2 Plan's "[s]econd `minority' district

did not have effective minority voting majority" because it "depended on

the cohesion of black and Native American voters, and no such pattern

was evident" and "this plan dramatically decreased black influence" in

four other districts).  A memorandum, sent to the Department of Justice

on behalf of the legislators in charge of the redistricting process,

provided still further reasons for the State's decision not to draw two

minority districts as urged by various interested parties.  App. 94-138;

861 F.Supp. at 480-481, n. 9 (Voorhees, C.J., dissenting).  We have

recognized that a State's policy of adhering to other districting

principles instead of creating as many majority-minority districts as

possible does not support an inference that the plan "so discriminates

on the basis of race or color as to violate the Constitution," and thus

cannot provide any basis under  5 for the Justice Department's

objection. Miller, supra, at ___ (citations omitted).



It appears that the Justice Department was pursuing in North Carolina

the same policy of maximizing the number of majority black districts

that it pursued in Georgia.  See Miller, supra, at ___, and n..  The two

States underwent the preclearance processes during the same time period

and the objection letters they received from the Civil Rights Division

were substantially alike.  App. in Miller v. Johnson, O.T. 1994, No.

94-631, pp. 99-107.  A North Carolina legislator recalled being told by

the Assistant Attorney General that you have twenty-two percent black

people in this State, you must have as close to twenty-two percent black

Congressmen, or black Congressional Districts in this State. App. 201. 

See also Deposition of Senator Dennis Winner, id. at 698.  We explained

in Miller that this maximization policy is not properly grounded in  5

and the Department's authority thereunder.  Miller, 515 U.S. at ___ ("In

utilizing  5 to require States to create majority-minority districts

wherever possible, the Department of Justice expanded its authority

under the statute beyond what Congress intended and we have upheld"). 

We again reject the Department's expansive interpretation of  5.  Id. at

___.  Cf. Johnson v. De Grandy, 512 U.S. ___ (1994) ("Failure to

maximize cannot be the measure of  2").



With respect to  2, appellees contend, and the District Court found,

that failure to enact a plan with a second majority black district would

have left the State vulnerable to a lawsuit under this section.  Our

precedent establishes that a plaintiff may allege a  2 violation in a

single-member district if the manipulation of districting lines

fragments politically cohesive minority voters among several districts

or packs them into one district or a small number of districts, and

thereby dilutes the voting strength of members of the minority

population.  De Grandy, supra, at ___.  To prevail on such a claim, a

plaintiff must prove that the minority group "is sufficiently large and

geographically compact to constitute a majority in a single-member

district"; that the minority group "is politically cohesive"; and that

"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. 30, 50-51 (1986); Growe v. Emison, 507 U.S. 25 (1993)

(recognizing that the three Gingles preconditions would apply to a  2

challenge to a single-member district).  A court must also consider all

other relevant circumstances and must ultimately find based on the

totality of those circumstances that members of a protected class "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).  See De Grandy, supra, at ___.



We assume, arguendo, for the purpose of resolving this case, that

compliance with  2 could be a compelling interest, and we likewise

assume, arguendo, that the General Assembly believed a second

majority-minority district was needed in order not to violate  2, and

that the legislature, at the time it acted, had a strong basis in

evidence to support that conclusion.  We hold that, even with the

benefit of these assumptions, the North Carolina plan does not survive

strict scrutiny, because the remedy -- the creation of District 12 -- is

not narrowly tailored to the asserted end.



Although we have not always provided precise guidance on how closely the

means (the racial classification) must serve the end (the justification

or compelling interest), we have always expected that the legislative

action would substantially address, if not achieve, the avowed purpose. 

See Miller, supra, at ___ ("[T]he judiciary retains an independent

obligation . . . to ensure that the State's actions are narrowly

tailored to achieve a compelling interest"); Wygant, 476 U.S. at 280

(opinion of Powell, J.) ("[T]he means chosen to accomplish the State's

asserted purpose must be specifically and narrowly framed to accomplish

that purpose") id. at 278, n. 5 (opinion of Powell, J.) (race-based

state action must be remedial); Shaw I, 509 U.S. at ___ ("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").  Cf. Missouri v. Jenkins, 515 U.S.

___, ___ (1995) (With regard to the remedial authority of a federal

court:  "the remedy must . . .  be related to `the condition alleged to

offend the Constitution. . . . '" and must be "remedial in nature, that

is, it must be designed as nearly as possible `to restore the victims of

discriminatory conduct to the position they would have occupied in the

absence of such conduct'").  Where, as here, we assume avoidance of  2

liability to be a compelling state interest, we think that the racial

classification would have to realize that goal; the legislative action

must at a minimum, remedy the anticipated violation or achieve

compliance to be narrowly tailored.



District 12 could not remedy any potential  2 violation.  As discussed

above, a plaintiff must show that the minority group is "geographically

compact" to establish  2 liability.  No one looking at District 12 could

reasonably suggest that the district contains a "geographically compact"

population of any race.  See 861 F.Supp. at 469.  Therefore where that

district sits, "there neither has been a wrong nor can be a remedy." 

Growe, supra, at 41.



Appellees do not defend District 12 by arguing that the district is

geographically compact, however.  Rather they contend, and a majority of

the District Court agreed, 861 F.Supp. at 454-454, n. 50, that once a

legislature has a strong basis in evidence for concluding that a  2

violation exists in the State, it may draw a majority-minority district

anywhere, even if the district is in no way coincident with the compact

Gingles district, as long as racially polarized voting exists where the

district is ultimately drawn.  Tr. of Oral Arg. 50-51, 54-56.



We find this position singularly unpersuasive.  We do not see how a

district so drawn would avoid  2 liability.  If a  2 violation is proven

for a particular area, it flows from the fact that individuals in this

area 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).  The vote dilution injuries suffered

by these persons are not remedied by creating a safe majority black

district somewhere else in the State.  For example, if a geographically

compact, cohesive minority population lives in south-central to

southeastern North Carolina, as the Justice Department's objection

letter suggested, District 12 which spans the Piedmont Crescent would

not address that  2 violation.  The black voters of the south-central to

southeastern region would still be suffering precisely the same injury

that they suffered before District 12 was drawn.  District 12 would not

address the professed interest of relieving the vote dilution, much less

be narrowly tailored to accomplish the goal.



Arguing, as appellees do and the District Court did, that the State may

draw the district anywhere derives from a misconception of the vote

dilution claim.  To accept that the district may be placed anywhere

implies that the claim, and hence the coordinate right to an undiluted

vote (to cast a ballot equal among voters), belongs to the minority as a

group and not to its individual members.  It does not.  See 42 U.S.C. 

1973 ("the right of any citizen").



The United States submits that District 12 does, in fact, incorporate a

"substantial portio[n]" of the concentration of minority voters that

would have given rise to a  2 claim.  Brief for United States as Amicus

Curiae 27.  Specifically, the Government claims that District 12 . . .

contains the heavy concentration of African Americans in Mecklenburg

County, the same urban component included in the second minority

opportunity district in some of the alternative plans. Ibid.  The

portion of District 12 that lies in Mecklenburg County covers not more

than 20% of the district.  See Exhibit 301 of Plaintiff-Intervenors, Map

A, Map 9B.  We do not think that this degree of incorporation could mean

that District 12 substantially addresses the  2 violation.  We hold,

therefore, that District 12 is not narrowly tailored to the State's

asserted interest in complying with  2 of the Voting Rights Act.



For the foregoing reasons, the judgment of the District Court is



Reversed. STEVENS, J., dissenting



JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join as

to Parts II-V, dissenting.



As I have explained on prior occasions, I am convinced that the Court's

aggressive supervision of state action designed to accommodate the

political concerns of historically disadvantaged minority groups is

seriously misguided.  A majority's attempt to enable the minority to

participate more effectively in the process of democratic government

should not be viewed with the same hostility that is appropriate for

oppressive and exclusionary abuses of political power.  See, e.g.,

Adarand Constructors, Inc. v. Pena, 515 U.S. ___, ___-___ (1995)

(STEVENS, J., dissenting); Miller v. Johnson, 515 U.S. ___, ___-___

(1995) (STEVENS, J., dissenting); Shaw v. Reno 509 U.S. 630, (1993)

(Shaw I) (STEVENS, J., dissenting); Wygant v. Jackson Bd. of Ed., 476

U.S. 267, (1986) (STEVENS, J., dissenting); Cousins v. City Council of

Chicago, 466 F.2d 830, 852 (CA7 1972) (STEVENS, J., dissenting).  But

even if we accept the Court's refusal to recognize any distinction

between two vastly different kinds of situations, we should affirm the

judgment of the District Court in this case.



As the Court analyzes the case, it raises three distinct questions:  (1)

Should North Carolina's decision to create two congressional districts

in which a majority of the voters are African American be subject to

strict constitutional scrutiny?; (2) If so, did North Carolina have a

compelling interest in creating such districts?; and (3) If so, was the

creation of those districts "narrowly tailored" to further the asserted

compelling interest?  The Court inadequately explains its answer to the

first question, and it avoids answering the second because it concludes

that its answer to the third disposes of the case.  In my estimation,

the Court's disposition of all three questions is most unsatisfactory.



After commenting on the majority's treatment of the threshold

jurisdictional issue, I shall discuss separately the three questions

outlined above.  In doing so, I do not mean to imply that I endorse the

majority's effort to apply in rigid fashion the strict scrutiny analysis

developed for cases of a far different type.  I mean only to show that,

even on its own terms, the majority's analysis fails to convince. I



I have explained previously why I believe that the Court has failed to

supply a coherent theory of standing to justify its emerging and

misguided race-based districting jurisprudence.  See Miller v. Johnson,

515 U.S. at ___-___ (STEVENS, J., dissenting); United States v. Hays,

515 U.S. ___, ___-___ (1995) (STEVENS, J., concurring in judgment).  The

Court's analysis of the standing question in this case is similarly

unsatisfactory, and, in my view, reflects the fact that the so-called

Shaw claim seeks to employ the federal courts to impose a particular

form of electoral process, rather than to redress any racially

discriminatory treatment that the electoral process has imposed.  In

this instance, therefore, I shall consider the standing question in

light of the majority's assertions about the nature of the underlying

constitutional challenge.



I begin by noting that this case reveals the Shaw claim to be useful

less as a tool for protecting against racial discrimination than as a

means by which state residents may second-guess legislative districting

in federal court for partisan ends.  The plaintiff-intervenors in this

case are Republicans.  It is apparent from the record that their real

grievance is that they are represented in Congress by Democrats when

they would prefer to be represented by members of their own party.  They

do not suggest that the racial identity of their representatives is a

matter of concern, but it is obvious that their political identity is

critical.  See Pope v. Blue, 809 F.Supp. 392 (WDNC 1992).



Significantly, from the outset of the legislative deliberations, the

Republican Party did not oppose the creation of more than one

majority-minority district.  Indeed, several plans proposed by the

Republicans in the state legislature provided two such districts.  861

F.Supp. 408, 460 (EDNC 1994).  However, now that the State has created a

district that is designed to preserve Democratic incumbents, and now

that the plaintiff-intervenors' partisan gerrymandering suit has been

dismissed for failure to state a claim, these intervenors have joined

this racial gerrymandering challenge.



It is plain that these intervenors are using their allegations of

impermissibly race-based districting to achieve the same substantive

result that their previous,  less emotionally charged partisan

gerrymandering challenge failed to secure.  In light of the amorphous

nature of the race discrimination claim recognized in Shaw I, it is

inevitable that allegations of racial gerrymandering will become a

standard means by which unsuccessful majority race candidates, and their

parties, will seek to obtain judicially what they could not obtain

electorally.



Even if the other plaintiffs to this litigation do object to the use of

race in the districting process for reasons other than partisan

political advantage, the majority fails to explain adequately the nature

of their constitutional challenge, or why it should be cognizable under

the Equal Protection Clause.  Not surprisingly, therefore, the

majority's explanation of why these plaintiffs have standing to bring

this challenge is unconvincing.



It is important to point out what these plaintiffs do not claim. 

Counsel for appellees put the matter succinctly when he stated that this

case is not Gomillion v. Lightfoot, 364 U.S. 339 (1960).  There, the

plaintiffs had been prohibited from voting in municipal elections; 

here, all voters remain free to select representatives to Congress. 

Thus, while the plaintiffs purport to be challenging an unconstitutional

racial gerrymander, they do not claim that they have been shut out of

the electoral process on account of race, or that their voting power has

been diluted as a consequence of race-based districting.  Shaw I, 509

U.S. at 641.



What then is the wrong that these plaintiffs have suffered that entitles

them to call upon a federal court for redress?  In Shaw I, the majority

construed the plaintiffs' claim to be that the Equal Protection Clause

forbids race-based districting designed solely to "separate" voters by

race, and that North Carolina's districting process violated the

prohibition.  Ibid.  Even if that were the claim before us, these

plaintiffs should not have standing to bring it.  The record shows that

North Carolina's districting plan served to require these plaintiffs to

share a district with voters of a different race.  Thus, the injury that

these plaintiffs have suffered, to the extent that there has been injury

at all, stems from the integrative rather than the segregative effects

of the State's redistricting plan.



Perhaps cognizant of this incongruity, counsel for plaintiffs asserted a

rather more abstract objection to race-based districting at oral

argument.  He suggested that the plaintiffs objected to the use of race

in the districting process not because of any adverse consequence that

these plaintiffs, on account of their race, had suffered more than other

persons, but rather because the State's failure to obey a constitutional

command to legislate in a color blind manner conveyed a message to

voters across the State that "there are two black districts and ten

white districts."



Such a challenge calls to mind Justice Frankfurter's memorable

characterization of the suit brought in Colegrove v. Green, 328 U.S.

549, 552 (1946). This is not an action to recover for damage because of

the discriminatory exclusion of a plaintiff from rights enjoyed by other

citizens, he explained.  "The basis for the suit is not a private wrong,

but a wrong suffered by Illinois as a polity."  Ibid.  Suits of this

type necessarily press the boundaries of federal court jurisdiction, if

they do not surpass it.  When a federal court is called upon, as it is

here, to parse among varying legislative choices about the political

structure of a State, and when the litigant's claim ultimately rests on

"a difference of opinion as to the function of representative

government," rather than a claim of discriminatory exclusion, Baker v.

Carr, 369 U.S. 186, 333 (1962) (Harlan, J., dissenting), there is reason

for pause.  Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992).



Even if an objection to a State's decision to forego color blind

districting is cognizable under some constitutional provision, I do not

understand why that provision should be the Equal Protection Clause.  In

Reynolds v. Sims, 377 U.S. 533, 561 (1964), we were careful to point out

that "[a] predominant consideration in determining whether a State's

legislative apportionment scheme constitutes an invidious discrimination

violative of rights asserted under the Equal Protection Clause is that

the rights allegedly impaired are individual and personal in nature." 

In addition, in Palmer v. Thompson, 403 U.S. 217, 225 (1971), we

explained that racially motivated legislation violates the Equal

Protection Clause only when the challenged legislation "affect[s] blacks

differently from whites."



To be sure, as some commentators have noted, we have permitted

generalized claims of harm resulting from State-sponsored messages to

secure standing under the Establishment Clause.  Pildes & Niemi,

Expressive Harms, "Bizarre Districts," and Voting Rights:  Evaluating

Election District Appearances After Shaw v. Reno, 92 Mich.L.Rev. 483,

499-524 (1993).  It would be quite strange, however, to confer similarly

broad standing under the Equal Protection Clause because that Clause

protects against wrongs which by definition burden some persons but not

others.



Here, of course, it appears that no individual has been burdened more

than any other.  The supposedly  insidious messages that Shaw I contends

will follow from extremely irregular race-based districting will

presumably be received in equal measure by all State residents.  For

that reason, the claimed violation of a shared right to a color blind

districting process would not seem to implicate the Equal Protection

Clause at all precisely because it rests neither on a challenge to the

State's decision to distribute burdens and benefits unequally, nor on a

claim that the State's formally equal treatment of its citizens in fact

stamps persons of one race with a badge of inferiority.  See Bush v.

Vera, post at ___ (SOUTER, J., dissenting).



Indeed, to the extent that any person has been burdened more than any

other by the State's districting plan, geography, rather than race,

would seem to be to blame.  The State has not chosen to subject only

persons of a particular race to race-based districting.  Rather, the

State has selected certain geographical regions in which all voters --

both white and black -- have been assigned to race-based districts. 

Thus, what distinguishes those residents who have received a "color

blind" districting process from those who have not is geography, rather

than racial identity.  Not surprisingly, therefore, Shaw I emphasizes

that the race of the members of the plaintiff class is irrelevant.  Shaw

I, 509 U.S. at 641.  Given the absence of any showing, or, indeed, any

allegation, that any person has been harmed more than any other on

account of race, the Court's decision to entertain the claim of these

plaintiffs would seem to emanate less from the Equal Protection Clause's

bar against racial discrimination than from the Court's unarticulated

recognition of a new substantive due process right to "color blind"

districting itself.  See Shaw I, 509 U.S. at   Revealed for what it is,

the constitutional claim before us ultimately depends for its success on

little more than speculative judicial suppositions about the societal

message that is to be gleaned from race-based districting.  I know of no

workable constitutional principle, however, that can discern whether the

message conveyed is a distressing endorsement of racial separatism, or

an inspiring call to integrate the political process.  As a result, I

know of no basis for recognizing the right to color blind districting

that has been asserted here.



Even if there were some merit to the constitutional claim, it is at

least clear that it requires the recognition of a new constitutional

right.  For that very reason, the Court's suggestion that pre-Shaw, race

discrimination precedent somehow compels the application of strict

scrutiny is disingenuous.  The fact that our Equal Protection

jurisprudence requires strict scrutiny of a claim that the State has

used race as a criterion for imposing burdens on some persons, but not

others, does not mean that the Constitution demands that a similar level

of review obtain for a claim that the State has used race to impose

equal burdens on the polity as a whole, or upon some nonracially defined

portion thereof.  As to the latter claim, the State may well deserve

more deference when it determines that racial considerations are

legitimate in a context that results in no race-based, unequal

treatment.



To take but one example, I do not believe that it would make sense to

apply strict scrutiny to the Federal Government's decision to require

citizens to identify their race on census forms, even though that

requirement would force citizens to classify themselves racially, and

even though such a requirement would arguably convey an insidious

message about the Government's continuing belief that race remains

relevant to the formulation of public policy.  Of course, if the Federal

Government required only those persons residing in the Midwest to

identify their race on the census form, I do not doubt that only persons

living in States in that region who filled out the forms would have

standing to bring the constitutional challenge.  I do doubt, however,

whether our Equal Protection jurisprudence would require a federal court

to evaluate the claim itself under strict scrutiny.  In such a case, the

only unequal treatment would have resulted from the State's decision to

discriminate on the basis of geography, a race-neutral selection

criterion that has not generally been thought to necessitate close

judicial review.



The majority ignores these concerns, and simply applies the standing

test set forth in United States v. Hays, 515 U.S. ___ (1995), on the

apparent assumption that this test adequately identifies those who have

been personally denied "equal treatment" on account of race. Id. at ___.

 In Hays, the Court held that a plaintiff has standing to challenge a

State's use of race in districting for Shaw claims if he (1) lives in a

district that allegedly constitutes a racial gerrymander or (2) shows

that, although he resides outside such a district, he has been

personally subject to a racial classification.  Ante at ___.  On this

basis, the Court concludes that none of the plaintiffs in this action

has standing to challenge District 1, but that two of them have standing

to challenge District 12.  Ante at ___.



As I understand it, the distinction drawn in Hays between those who live

within a district and those who do not is thought to be relevant because

voters who live in the "gerrymandered" district will have suffered the

"personal" injuries inflicted by race-based districting more than other

state residents.  Those injuries are said to be "representational" harms

in the sense that race-based districting may cause officeholders to

represent only those of the majority race in their district, or

"stigmatic" harms, in the sense that the race-based linedrawing may

promote racial hostility.  United States v. Hays, 515 U.S. at ___; Shaw

I, 509 U.S. at



Even if I were to accept the flawed assumption that the Hays test serves

to identify any voter who has been burdened more than any other as a

consequence of his race, I would still find it a most puzzling inquiry. 

What the Court fails to explain, as it failed to explain in Hays, is why

evidence showing either that one lives in an allegedly racially

gerrymandered district or that one's district assignment directly

resulted from a racial classification should suffice to distinguish

those who have suffered the representational and stigmatic harms that

supposedly follow from race-based districting from those who have not.



If representational injuries are what one must show to secure standing

under Hays, then a demonstration that a voter's race led to his

assignment to a particular district would perhaps be relevant to the

jurisdictional inquiry, but surely not sufficient to satisfy it.  There

is no necessary correlation between race-based districting assignments

and inadequate representation.  See Davis v. Bandemer, 478 U.S. 109, 132

(1986) (opinion of White, J.).  Indeed, any assumption that such a

correlation exists could only be based on a stereotypical assumption

about the kind of representation that politicians elected by minority

voters are capable of providing.  See Miller v. Johnson, 515 U.S. at

___-___ (STEVENS, J., dissenting).



To prove the representational harms that Hays holds  are needed to

establish standing to assert a Shaw claim, one would think that

plaintiffs should be required to put forth evidence that demonstrates

that their political representatives are actually unlikely to provide

effective representation to those voters whose interests are not aligned

with those of the majority race in their district.  Here, as the record

reveals, no plaintiff has made such a showing.  See 861 F.Supp. at

424-425, 471, n. 59.  Given our general reluctance to hear claims

founded on speculative assertions of injury, I do not understand why the

majority concludes that the speculative possibility that race-based

districting "may" cause these plaintiffs to receive less than complete

representation suffices to create a cognizable case or controversy. 

United States v. Hays, 515 U.S. at ___.



If, under Hays, the so-called "stigmatic" harms which result from

extreme race-based districting suffice to secure standing, then I fail

to see why it matters whether the litigants live within the

"gerrymandered" district or were placed in a district as a result of

their race.  As I have pointed out, all voters in North Carolina would

seem to be equally affected by the messages of "balkanization" or

"racial apartheid" that racially gerrymandered maps supposedly convey,

cf. Davis, 478 U.S. at 153 (O'CONNOR, J., concurring in judgment).



Even if race-based districting could be said to impose more personal

harms than the so-called "stigmatic" harms that Hays itself identified,

I do not understand why any voter's reputation or dignity should be

presumed to have been harmed simply because he resides in a highly

integrated, majority-minority voting district that the legislature has

deliberately created.  Certainly the background social facts are not

such that we should presume that the "stigmatic harm" described in Hays

and Shaw I amounts to that found cognizable under the Equal Protection

Clause in Brown v. Board of Education, 347 U.S. 483, 495 (1954), where

state-sponsored school segregation caused some students, but not others,

to be stamped with a badge of inferiority on account of their race.  See

Shaw I, 509 U.S. at 682, n. 4 (SOUTER, J., dissenting).



In sum, even if it could be assumed that the plaintiffs in this case

asserted the personalized injuries recognized in Hays at the time of

Shaw I by virtue of their bare allegations of racial gerrymandering,

they have surely failed to prove the existence of such injuries to the

degree that we normally require at this stage of the litigation.  See

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  Thus, so long as

the Court insists on treating this type of suit as a traditional Equal

Protection claim, it must either mean to take a broader view of the

power of federal courts to entertain challenges to race-based

governmental action than it has heretofore adopted, see Allen v. Wright,

468 U.S. 737 (1984); cf. Palmer, 403 U.S. at  or to create a special

exception to general jurisdictional limitations for plaintiffs such as

those before us here.  Suffice it to say, I charitably assume the former

to be the case, and proceed to consider the merits on the assumption

that Shaw I was correctly decided. II



The District Court concluded that Shaw I required the application of

strict scrutiny in any case containing proof that racial considerations

played a "substantial" or "motivating" role in the linedrawing process,

even if they were not the only factor that influenced that process. 861

F.Supp. at 431.  The court acknowledged that under this standard any

deliberate effort to draw majority-minority districts in conformity with

the Voting Rights Act would attract the strictest constitutional review,

regardless of whether race-neutral districting criteria were also

considered.  Id. at 429.  As a consequence, it applied strict scrutiny

in this case solely on the basis of North Carolina's concession that it

sought to draw two majority-minority districts in order to comply with

the Voting Rights Act, and without performing any inquiry into whether

North Carolina had considered race-neutral districting criteria in

drawing District 12's boundaries.



As the majority concludes, the District Court's test for triggering

strict scrutiny set too low a threshold for subjecting a State's

districting effort to rigorous, if not fatal, constitutional review. 

Ante at ___.  In my view, therefore, the Court should at the very least

remand the case to allow the District Court, which possesses an obvious

familiarity with the record and a superior understanding of local

dynamics, to make the fact-intensive inquiry into legislative purpose

that the proper test for triggering strict scrutiny requires.  Although

I do not share the majority's willingness to divine on my own the degree

to which race determined the precise contours of District 12, if forced

to decide the matter on this record, I would reject the majority's

conclusion that a fair application of precedent dictates that North

Carolina's redistricting effort should be subject to strict scrutiny.



Subsequent to the District Court's decision, we handed down Miller v.

Johnson, 515 U.S. ___ (1995), and issued our summary affirmance in

DeWitt v. Wilson, 515 U.S. ___ (1995).  As I understand the Miller test,

and as it was applied in DeWitt, state legislatures may take racial and

ethnic characteristics of voters into account when they are drawing

district boundaries without triggering strict scrutiny so long as race

is not the "predominant" consideration guiding their deliberations. 

Miller v. Johnson, 515 U.S. at ___.  To show that race has been

"predominant," a plaintiff must show that "the legislature subordinated

traditional race-neutral districting principles . . . to racial

considerations" in drawing that district.  Id. at ___; see also id. at

___ (O'CONNOR, J., concurring) ("To invoke strict scrutiny, a plaintiff

must show that the State has relied on race in substantial disregard of

customary and traditional districting practices"); DeWitt v. Wilson, 856

F.Supp. 1409, 1412 (ED Cal. 1994), aff'd in part, dism'd in part, 515

U.S. ___ (1995) (declining to apply strict scrutiny because State

complied with traditional districting principles).



Indeed, the principal opinion in Bush v. Vera, post, p. ___, issued this

same day, makes clear that the deliberate consideration of race in

drawing district lines does not in and of itself invite constitutional

suspicion.  As the opinion there explains, our precedents do not require

the application of strict scrutiny "to all cases of intentional creation

of majority-minority districts."  Bush, post at ___.  Rather, strict

scrutiny should apply only upon a demonstration that "`race for its own

sake, and not other districting principles, was the legislature's

dominant and controlling rationale in drawing its district lines.'" 

Ibid. (quoting Miller, 515 U.S. at ___).



Because "the legitimate consideration of race in a districting decision

is usually inevitable under the Voting Rights Act when communities are

racially mixed," Shaw I, 509 U.S. at 683 (SOUTER, J., dissenting), our

decisions in Miller, DeWitt, and Bush have quite properly declined to

deem all race-based districting subject to strict scrutiny.  Unlike many

situations in which the consideration of race itself necessarily gives

rise to constitutional suspicion, see, e.g., Batson v. Kentucky, 476

U.S. 79 (1986), Adarand Constructors, Inc. v. Pena, 515 U.S. ___ (1995),

our precedents have sensibly recognized that in the context of

redistricting a plaintiff must demonstrate that race had been used in a

particularly determinative manner before strict constitutional scrutiny

should obtain.  Cf. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265

(1978).  This higher threshold for triggering strict scrutiny comports

with the fact that the shared representational and stigmatic harms that

Shaw purports to guard against are likely to occur only when the State

subordinates race-neutral districting principles to a racial goal.  See

Shaw I, 509 U.S. at  861 F.Supp. at 476-478 (Voorhees, C.J.,

dissenting); Pildes & Niemi 92 Mich. L.Rev. at 499-524.



Shaw I is entirely consistent with our holdings that race-based

districting which respects traditional districting principles does not

give rise to constitutional suspicion.  As the District Court noted,

Shaw I expressly reserved the question whether "`the intentional

creation of majority-minority districts, without more,' always gives

rise to an equal protection claim."  861 F.Supp. at 429 (quoting Shaw I,

509 U.S. at 649).  Shaw I held only that an equal protection claim could

lie as a result of allegations suggesting that the State's districting

was 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[.] Id. at 642 (emphasis

added).



Moreover, Miller belies the conclusion that strict scrutiny must apply

to all deliberate attempts to draw majority-minority districts if the

Equal Protection Clause is to provide any practical limitation on a

State's power to engage in race-based districting.  Although Georgia

argued that it had complied with traditional districting principles, the

Miller majority had little difficulty concluding that the State's

race-neutral explanations were implausible.  Miller v. Johnson, 515 U.S.

___ (1995).  Thus, Miller demonstrates that, although States may avoid

strict scrutiny by complying with traditional districting principles,

they may not do so by proffering pretextual, race-neutral explanations

for their maps.



The notion that conscientious federal judges will be able to distinguish

race-neutral explanations from pretextual ones is hardly foreign to our

race discrimination jurisprudence.  In a variety of contexts, from

employment to juror selection, we have required plaintiffs to

demonstrate not only that a defendant's action could be understood as

impermissibly race-based, but also that the defendant's assertedly

race-neutral explanation for that action was in fact a pretext for

racial discrimination.  Purkett v. Elem, 514 U.S. ___, ___ (1995); St.

Mary's Honor Center v. Hicks, 509 U.S. 502, (1993).  Similarly, I

understand Shaw I, Miller, DeWitt, and Bush to require plaintiffs to

prove that the State did not respect traditional districting principles

in drawing majority-minority districts.  See Bush, post at ___.



In holding that the present record shows race to have been the

"predominant" consideration in the creation of District 12, the Court

relies on two pieces of evidence:  the State's admission that its

"overriding" purpose was to "`create two congressional districts with

effective black voting majorities,'" ante at ___; and the

"`geographically noncompact'" shape of District 12, ante at ___.  In my

view, this evidence does not suffice to trigger strict scrutiny under

the "demanding" test that Miller establishes.  Miller v. Johnson, 515

U.S. at ___ (O'CONNOR, J., concurring).



North Carolina's admission reveals that it intended to create a second

majority-minority district.  That says nothing about whether it

subordinated traditional districting principles in drawing District 12. 

States which conclude that federal law requires majority-minority

districts have little choice but to give "overriding" weight to that

concern.  Indeed, in Voinovich v. Quilter, 507 U.S. 146, 159 (1993), we

explained that evidence which showed that Ohio's chief mapmaker

preferred federal over state law when he believed the two in conflict

does not raise an inference of intentional discrimination; it

demonstrates obedience to the Supremacy Clause of the United States

Constitution. For that reason, we have not previously held that

concessions such as North Carolina's suffice to trigger strict scrutiny.

 Cf. Bush, post at ___.{10}  Thus, the State's concession is of little

significance.



District 12's noncompact appearance also fails to show that North

Carolina engaged in suspect race-based districting.  There is no federal

statutory or constitutional requirement that state electoral boundaries

conform to any particular ideal of geographic compactness.  In addition,

although the North Carolina Constitution requires electoral districts

for state elective office to be contiguous, it does not require them to

be geographically compact.{11}  N.C.Const., Art. II,   2, 5 (1984). 

Given that numerous States have written geographical compactness

requirements into their state constitutions, North Carolina's omission

on this score is noteworthy.  See Grofman, Criteria for Districting:  A

Social Science Perspective, 33 UCLA L.Rev. 77, 84 (1985).  It reveals

that North Carolina's creation of a geographically noncompact district

does not itself mark a deviation from any prevailing state districting

principle.{12}  Thus, while the serpentine character of District 12 may

give rise to an inference that traditional districting principles were

subordinated to race in determining its boundaries, it cannot fairly be

said to prove that conclusion in light of the clear evidence

demonstrating race-neutral explanations for the district's tortured

shape.  See infra.



There is a more fundamental flaw in the majority's conclusion that

racial concerns predominantly explain the creation of District 12.  The

evidence of shape and intent relied on by the majority cannot overcome

the basic fact that North Carolina did not have to draw Districts 1 and

12 in order to comply with the Justice Department's finding that federal

law required the creation of two majority-minority districts.  That goal

could have been more straightforwardly accomplished by simply adopting

the Attorney General's recommendation to draw a geographically compact

district in the southeastern portion of the State in addition to the

majority-minority district that had already been drawn in the

northeastern and Piedmont regions.  See Shaw I, 509 U.S. at  861 F.Supp.

at 460, 461-462, 464.



That the legislature chose to draw Districts 1 and 12 instead surely

suggests that something more than the desire to create a

majority-minority district took precedence.  For that reason, this case

would seem to present a version of the very hypothetical that the

principal opinion in Bush suggests should pose no constitutional

problem-"an otherwise compact majority-minority district that is

misshapen by nonracial, political manipulation."  Bush, post at ___.



Here, no evidence suggests that race played any role in the

legislature's decision to choose the winding contours of District 12

over the more cartographically pleasant boundaries proposed by the

Attorney General.{13}  Rather, the record reveals that two race-neutral,

traditional districting criteria determined District 12's shape:  the

interest in ensuring that incumbents would remain residents of the

districts they have previously represented; and the interest in placing

predominantly rural voters in one district and predominantly urban

voters in another.  861 F.Supp. at 466-472; see also Miller v. Johnson,

515 U.S. ___ (1995) (considering whether communities of interest were

preserved); White v. Weiser, 412 U.S. 783, (1973) (establishing

incumbency protection as a legitimate districting principle).



Unlike most States, North Carolina has not given its chief executive any

power to veto enactments of its legislature.  Thus, even though the

voters had elected a Republican Governor, the Democratic majority in the

legislature was in control of the districting process.  It was the

Democrats who first decided to adopt the 11-white-district plan that

arguably would have violated  2 of the Voting Rights Act and gave rise

to the Attorney General's objection under  5.  It was also the Democrats

who rejected Republican Party maps which contained two majority-minority

districts because they created too many districts in which a majority of

the residents were registered Republicans.  861 F.Supp. at 460.



If race rather than incumbency protection had been the dominant

consideration, it seems highly unlikely that the Democrats would have

drawn this bizarre district rather than accepting more compact options

that were clearly available.  If race, rather than politics, had been

the "predominant" consideration for the Democrats, they could have

accepted the Republican Plan, thereby satisfying the Attorney General

and avoiding any significant risk of liability as well as the attack

mounted by the plaintiffs in this case.  Instead, as the detailed

findings of the District Court demonstrate, the legislature deliberately

crafted a districting plan that would accommodate the needs of

Democratic incumbents.  Id. at 466-467.{14}



If the Democrats remain in control of the districting process after the

remand in this case, it will be interesting to see whether they will be

willing to sacrifice one or more Democratic-majority districts in order

to create at least two districts with effective minority voting

majorities.  My review of the history revealed in the findings of the

District Court persuades me that political considerations will probably

take priority over racial considerations in the immediate future, just

as they surely did during the process of rejecting the Republican plan

and ultimately adopting the plan challenged in this case.{15}



A deliberate effort to consolidate urban voters in one district and

rural voters in another also explains District 12's highly irregular

shape.  Before District 12 had been drawn, members of the public as well

as legislators had urged that the observance of distinctive urban and

rural communities of interest should be a prime consideration in the

general redistricting process. Id. at 466.  As a result, the legislature

was naturally attracted to a plan that, although less than aesthetically

pleasing, included both District 12, which links the State's major urban

centers, and District 1, which has a population that predominantly lives

in cities with populations of less than 20,000.  Id. at 467.



Moreover, the record reveals that District 12's lines were drawn in

order to unite an African American community whose political tradition

was quite distinct from the one that defines African American voters in

the Coastal Plain, which District 1 surrounds.  Ibid.  Indeed, two other

majority-minority-district plans with less torturous boundaries were

thought unsatisfactory precisely because they did not unite communities

of interest.  861 F.Supp. at 465-466; Tr. 481.  Significantly, the

irregular contours of District 12 track the State's main interstate

highway and are located entirely within the culturally distinct Piedmont

Crescent region.  861 F.Supp. at 466.  Clearly, then, District 12 was

drawn around a community "defined by actual shared interests" rather

than racial demography.  Miller v. Johnson, 515 U.S. at ___; see also

Shaw I, 509 U.S. at  DeWitt v. Wilson, 856 F.Supp. at 1412, 1413-1414

(recognizing that districts were "functionally" compact because they

surrounded "communit[ies] of interest").



In light of the majority's decision not to remand for proper application

of the Miller test, I do not understand how it can condemn the drawing

of District 12 given these two race-neutral justifications for its

shape.  To be sure, in choosing a district that snakes rather than sits,

North Carolina did not put a premium on geographical compactness.  But I

do not understand why that should matter in light of the evidence which

shows that other race-neutral districting considerations were

determinative.{16} III



As the foregoing discussion illustrates, legislative decisions are often

the product of compromise and mixed motives.  For that reason, I have

always been skeptical about the value of motivational analysis as a

basis for constitutional adjudication.  See, e.g., Washington v. Davis,

426 U.S. 229, (1976) (STEVENS, J., concurring).  I am particularly

skeptical of such an inquiry in a case of this type, as mixed

motivations would seem to be endemic to the endeavor of political

districting.  See, e.g, Bush, post at ___ ("The present case is a

mixed-motive case").



The majority's analysis of the "compelling interest" issue nicely

demonstrates the problem with parsing legislative motive in this

context.  The majority posits that the legislature's compelling interest

in drawing District 12 was its desire to avoid liability under  2 of the

Voting Rights Act.  Yet it addresses the question whether North Carolina

had a compelling interest only because it first concludes that a racial

purpose dominated the State's districting effort.



It seems to me that if the State's true purpose were to serve its

compelling interest in staving off costly litigation by complying with

federal law, then it cannot be correct to say that a racially

discriminatory purpose controlled its linedrawing.  A more accurate

conclusion would be that the State took race into account only to the

extent necessary to meet the requirements of a carefully thought out

federal statute.  See Voinovich v. Quilter, 507 U.S. at 159.  The

majority's implicit equation of the intentional consideration of race in

order to comply with the Voting Rights Act with intentional racial

discrimination reveals the inadequacy of the framework it adopts for

considering the constitutionality of race-based districting.



However, even if I were to assume that strict scrutiny applies, and thus

that it makes sense to consider the question, I would not share the

majority's hesitancy in concluding that North Carolina had a "compelling

interest" in drawing District 12.  In my view, the record identifies not

merely one, but at least three acceptable reasons that may have

motivated legislators to favor the creation of two such districts. 

Those three reasons easily satisfy the judicially created requirement

that the state legislature's decision be supported by a "compelling

state interest," particularly in a case in which the alleged injury to

the disadvantaged class -- i.e., the majority of voters who are white --

is so tenuous.



First, some legislators felt that the sorry history of race relations in

North Carolina in past decades was a sufficient reason for making it

easier for more black leaders to participate in the legislative process

and to represent the State in the Congress of the United States.  861

F.Supp. at 462-463.  Even if that history does not provide the kind of

precise guidance that will justify certain specific affirmative action

programs in particular industries, see ante at ___, it surely provides

an adequate basis for a decision to facilitate the election of

representatives of the previously disadvantaged minority.



As a class, state legislators are far more likely to be familiar with

the role that race plays in electoral politics than they are with the

role that it plays in hiring decisions within discrete industries. 

Moreover, given the North Carolina Legislature's own recent experience

with voting rights litigation, see Thornburg v. Gingles, 478 U.S. 30

(1986), as well as the fact that 40 of the State's districts are

so-called covered jurisdictions which the Attorney General directly

monitors as a result of prior discriminatory practices, see 42 U.S.C. 

1973c (1988 ed.), there is less reason to assume that the state

legislative judgments under review here are based on unwarranted

generalizations than may be true in other contexts.  Thus, even if a

desire to correct past discrimination did not itself drive the

legislative decision to draw two majority-minority districts, it plainly

constituted a legitimate and significant additional factor supporting

the decision to do so.  861 F.Supp. at 472-473.



Second, regardless of whether  5 of the Act was actually violated, I

believe the State's interest in avoiding the litigation that would have

been necessary to overcome the Attorney General's objection to the

original plan provides an acceptable reason for creating a second

majority-minority district.  It is entirely proper for a State whose

past practices have subjected it to the preclearance obligation set

forth in  5 to presume that the Attorney General's construction of the

Act is correct, and to take corrective action rather than challenging

him{17} in Court.



Moreover, even if the State's interest in avoiding a court challenge

that might have succeeded does not constitute a sufficient justification

for its decision to draw a majority-minority district, the State plainly

had an interest in complying with a finding by the Attorney General that

it reasonably believed could not have been successfully challenged in

court.  The majority disagrees, relying on our analysis in Miller v.

Johnson, 515 U.S. at ___-___.  That reliance is misplaced.



In Miller, the Court concluded that Georgia had simply acceded to the

Attorney General's unreasonable construction of  5 without performing

any independent assessment of its validity.  Ibid.  By contrast, the

District Court here found as a factual matter that the legislature's

independent assessment of the reasons for the Attorney General's denial

of preclearance led it to the reasonable conclusion that its 11-white

district plan would violate the purpose prong of  5.  861 F.Supp. at

474.  As a result, I do not accept the Court's conclusion that it was

unreasonable for the State to believe that its decision to draw 1

majority-minority district out of 12 would have been subject to a

successful attack under the purpose prong of  5.  Ante at ___.



I acknowledge that when North Carolina sought preclearance it asserted

nondiscriminatory reasons for deciding not to draw a second

majority-minority district.  See 861 F.Supp. at 480, n. 9 (Vorhees,

C.J., dissenting).  On careful reflection, however, the legislature

concluded that those reasons would not likely suffice in a federal

action to challenge the Attorney General's ruling.  The District Court

found that conclusion to be reasonable.  Id. at 474.  I am mystified as

to why this finding does not deserve our acceptance.  Nor do I

understand the Court's willingness to credit the State's declarations of

nondiscriminatory purpose in this context, ante at ___, in light of its

unwillingness to accept any of North Carolina's race-neutral

explanations for its decision to draw District 12, ante at ___.



Third, regardless of the possible outcome of litigation alleging that  2

of the Voting Rights Act would be violated by a plan that ensured the

election of white legislators in 11 of the State's 12 congressional

districts, the interest in avoiding the expense and unpleasantness of

such litigation was certainly legitimate and substantial.  That the

legislature reasonably feared the possibility of a successful  2

challenge cannot be credibly denied.{18}



In the course of the redistricting debate, numerous maps had been

presented showing that blacks could constitute more than 50 percent of

the population in two districts.  861 F.Supp. at 460-461, 474.  The

District Court found that these plans had demonstrated that "the state's

African American population was sufficiently large and geographically

compact to constitute a majority in two congressional districts."  Id.

at 464.



Moreover, the Attorney General denied preclearance on the ground that

North Carolina could have created a second majority-minority district

that was, under any reasonable standard, geographically compact.  Id. at

461-462; Shaw I, 509 U.S. at 635.  Maps prepared by the

plaintiff-intervenors for this litigation conclusively demonstrate that

two compact, majority-minority districts could indeed have been drawn. 

866 F.Supp. at 464-465; Plaintiff-Intervenors' Exh. 301, A2-A3.



Even if many of the maps proposing two majority-African American

districts were not particularly compact, the legislature reasonably

concluded that a federal court might have determined that some of them

could have provided the basis for a viable vote dilution suit pursuant

to Thornburg v. Gingles, 478 U.S. at 50-51.  861 F.Supp. at 474.  That

conclusion is particularly reasonable in light of the fact that Gingles

was a case fresh in the minds of many of North Carolina's state

legislators, id. at 463.  There, the State challenged the plaintiffs'  2

claim by pointing to the oddly configured lines that defined their

proposed majority-minority districts.  See Gingles v. Edmisten, 590

F.Supp. 345, 373 (EDNC 1984).  As we know, North Carolina's defense to 

2 liability proved unsuccessful in that instance, even though the

district court acknowledged that the "single-member district

specifically suggested by the plaintiffs as a viable one is obviously

not a model of aesthetic tidiness."  Id. at 374.{19}



Finally, even if the record shows that African American voters would not

have comprised more than 50 percent of the population in any plan

containing two compact, majority-minority districts, the record reveals

that it would have been possible to have drawn a map containing one

compact district in which African Americans would have comprised more

than 50 percent of the population and another compact district in which

African Americans, by reason of the large presence of Native Americans,

would have by far constituted the largest racial group. 

Plaintiff-Intervenors' Exh. 301, A2-A3.  Given our recent emphasis on

considering the totality of the circumstances in  2 cases, we are in no

position to rebuke a State for concluding that a 40-plus percent African

American district could provide a defense to a viable Gingles challenge

as surely as could one with a 50.1 percent African American population. 

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

Quilter, 507 U.S. 146 (1993); Rural West Tennessee African American

Affairs Council, Inc. v. McWherter, 877 F. Supp 1096 (WD Tenn. 1995),

aff'd, 516 U.S. ___ (1995).{20}





IV



Although the Court assumes that North Carolina had a compelling interest

in "avoiding liability" under  2, ante at ___, it avoids conclusively

resolving that question because it holds that District 12 was not a

"narrowly tailored" means of achieving that end.  The majority reaches

this conclusion by determining that District 12 did not "remedy" any

potential violation of  2 that may have occurred.  Ante at ___.



In my judgment, if a State's new plan successfully avoids the potential

litigation entirely, there is no reason why it must also take the form

of a "remedy" for an unproven violation.  Thus, the fact that no  2

violation has been proven in the territory that comprises District 12

does not show that the district fails to serve a compelling state

interest.  It shows only that a federal court, which is constrained by

Article III, would not have had the power to require North Carolina to

draw that district.  It is axiomatic that a State should have more

authority to institute a districting plan than would a federal court. 

Voinovich v. Quilter, 507 U.S. at



That District 12 will protect North Carolina from liability seems clear.

 The record gives no indication that any of the potential  2 claimants

is interested in challenging the plan that contains District 12. 

Moreover, as a legal matter, North Carolina is in a stronger position to

defend against a  2 lawsuit with District 12 than without it.



Johnson v. De Grandy expressly states that at least in the context of

single-member districting plans, a plaintiff cannot make out a prima

facie case of vote dilution under  2 unless he can demonstrate that his

proposed map contains more majority-minority districts than the State's.

 512 U.S. at ___.  By creating a plan with two majority-minority

districts here, the State would seem to have precluded potential

litigants from satisfying that precondition.{21}



In addition, satisfaction of the so-called Gingles preconditions does

not entitle an individual minority voter to inclusion in a

majority-minority district.  A court may conclude that a State must

create such a district only after it considers the totality of the

circumstances.  A court would be remiss if it failed to take into

account that the State had drawn majority-minority districts

proportional to its minority population which include portions of the

very minority community in which an individual minority plaintiff

resides.  Indeed, our recent decisions compel courts to perform just

such a calculus.  See Johnson v. De Grandy, 512 U.S. at ___; Voinovich

v. Quilter, 507 U.S. 146 (1993); see also African American Voting Rights

Legal Defense Fund, Inc., v. Villa, 54 F.3d 1345, 1355-1357 (CA8 1995).



Finally, North Carolina's chosen means of avoiding liability will impose

none of the burdens on third parties that have made the Court wary of

voluntary, race-based state action in the past.  No white employees or

applicants stand to lose jobs on account of their race as a result of

North Carolina's actions.  In fact, no white voters risk having their

votes unlawfully diluted.  At most, North Carolina's chosen means will

require that some people of both races will be placed in districts other

than those to which they would have otherwise been assigned.  Even

assuming that "burden" is more onerous when it results from racial

considerations, it does not rise to a level of injury that justifies a

federal court intruding on the State's discretion to formulate a plan

that complies with the Voting Rights Act.



In fact, to the extent that plaintiffs in these cases premise their

standing on the "representational" harms that they suffer, see supra, at

___, a State's decision to locate a majority-minority district outside

the area that suffers from acute, racial bloc voting would seem to

diminish the likelihood that representatives in majority-minority

districts will serve only the interests of minority voters.  After all,

a representative of a majority-minority district that does not suffer

from racial bloc voting cannot safely ignore the interests of voters of

either race.  In this respect, the majority's narrow tailoring

requirement, by forcing States to remedy perceived  2 violations only by

drawing the district around the area in which the Gingles preconditions

have been satisfied, has the perverse consequence of requiring States to

inflict the very harm that supposedly renders racial gerrymandering

challenges constitutionally cognizable.{22}



Although I do not believe a judicial inquiry into "narrow tailoring" is

either necessary or appropriate in this case, the foregoing discussion

reveals that the "narrow tailoring" requirement that the Court has

fashioned is a pure judicial invention that unfairly deprives the

legislature of a sovereign state of its traditional discretion in

determining the boundaries of its electoral districts.{23}  The Court's

analysis gives rise to the unfortunate suggestion that a State which

fears a  2 lawsuit must draw the precise district that it believes a

federal court would have the power to impose.  Such a proposition

confounds basic principles of federalism, and forces States to imagine

the legally "correct" outcome of a lawsuit that has not even been filed.



The proposition is also at odds with the course of the litigation that

led to Gingles itself.  In that case, the plaintiffs proposed a number

of oddly configured majority-minority districts to prove their vote

dilution claim.  In implementing a remedy for the  2 violation, the

federal court wisely permitted North Carolina to propose its own

remedial districts, many of which were highly irregular in dimension. 

Indeed, so peculiar were some of the shapes concocted by the State that

the Gingles plaintiffs challenged them on the grounds that they

constituted racial gerrymanders which failed to remedy the very

violations that had given rise to the need for their creation, and that

they reflected only grudging responses designed to protect incumbent

officeholders.  Gingles v. Edmisten, 590 F.Supp. at 381.



Although the District Court in Gingles acknowledged that the State's

plan was not the one that it would have implemented, it nonetheless

concluded that the plan constituted a reasonable exercise of state

legislative judgment. [A] state legislature's primary jurisdiction for

legislative apportionment and redistricting must include the right, free

of judicial rejection, to implement state policies that may fail to

remedy to the fullest extent possible the voting rights violations

originally found. Id. at 382.



In dramatic contrast, the Court today rejects North Carolina's plan

because it does not provide the precise remedy that might have been

ordered by a federal court, even though it satisfies potential

plaintiffs, furthers such race-neutral legislative ends as incumbency

protection and the preservation of distinct communities of interest, and

essentially serves to insulate the State from a successful statutory

challenge.  There is no small irony in the fact that the Court's

decision to intrude into the State's districting process comes in

response to a lawsuit brought on behalf of white voters who have

suffered no history of exclusion from North Carolina's political

process, and whose only claims of harm are at best rooted in speculative

and stereotypical assumptions about the kind of representation they are

likely to receive from the candidates that their neighbors have chosen.

V



It is, of course, irrelevant whether we, as judges, deem it wise policy

to create majority-minority districts as a means of assuring fair and

effective representation to minority voters.  We have a duty to respect

Congress' considered judgment that such a policy may serve to effectuate

the ends of the constitutional Amendment that it is charged with

enforcing.  We should also respect North Carolina's conscientious effort

to conform to that congressional determination.  Absent some

demonstration that voters are being denied fair and effective

representation as a result of their race, I find no basis for this

Court's intervention into a process by which federal and state actors,

both black and white, are jointly attempting to resolve difficult

questions of politics and race that have long plagued North Carolina. 

Nor do I see how our constitutional tradition can countenance the

suggestion that a State may draw unsightly lines to favor farmers or

city dwellers, but not to create districts that benefit the very group

whose history inspired the Amendment that the Voting Rights Act was

designed to implement.



Because I have no hesitation in concluding that North Carolina's

decision to adopt a plan in which white voters were in the majority in

only 10 of the State's 12 districts did not violate the Equal Protection

Clause, I respectfully dissent. SOUTER, J., dissenting



JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join,

dissenting.



My views on this case are substantially expressed in my dissent to Bush

v. Vera, post, p. ___.



Footnotes REHNQUIST, J., lead opinion (Footnotes)



* Together with No. 94-924, Pope et al. v. Hunt, Governor of North

Carolina, et al., also on appeal from the same court.



1. The complaint also named the Attorney General of the United States

and the Assistant Attorney General for the Civil Rights Division as

defendants.  The District Court granted the federal officials' motion to

dismiss, Shaw v. Barr, 808 F.Supp. 461 (EDNC 1992), and that judgment

was not appealed.



2. JUSTICE STEVENS would dismiss the complaint for a lack of standing. 

Post at ___.  Here, as in other places in his dissent, JUSTICE STEVENS'

disagreement is more with the Court's prior decisions in Shaw I, supra,

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

U.S. ___ (1995), than with this decision.  JUSTICE STEVENS challenged

the Court's standing analysis and its finding of cognizable injury in

both Hays, supra, at ___ (STEVENS, J., concurring in judgment) and

Miller, supra, at  ___ (STEVENS, J., dissenting), and both Justice White

and JUSTICE SOUTER advanced many of the same arguments in Shaw I.  See

Shaw I, supra, at ___ (White, J., dissenting); id. at ___ (SOUTER, J.,

dissenting).  Their position has been repeatedly rejected by the Court. 

See Shaw I, supra, at ___, Miller, supra, at ___, and Hays, supra, at

___.



3. The dissent incorrectly reads Miller as demonstrating that "although

States may avoid strict scrutiny by complying with traditional

districting principles, they may not do so by proffering pretextual,

race-neutral explanations."  Post at ___.  Miller plainly states that,

although compliance with "traditional districting principles such as

compactness, contiguity, and respect for political subdivisions" may

well suffice to refute a claim of racial gerrymandering, a State cannot

make such a refutation where "those factors were subordinated to racial

objectives."  Miller, 515 U.S. at ___ (citation omitted) (emphasis

added).



4. JUSTICE STEVENS discerns three reasons which he believes "may have

motivated" the legislators to favor the creation of the two minority

districts and which he believes together amount to a compelling state

interest.  Post at ___.  As we explain below, a racial classification

cannot withstand strict scrutiny based upon speculation about what "may

have motivated" the legislature.  To be a compelling interest, the State

must show that the alleged objective was the legislature's "actual

purpose" for the discriminatory classification, see Mississippi Univ.

for Women v. Hogan, 458 U.S. 718, 730 and n. 16 (1982), and the

legislature must have had a strong basis in evidence to support that

justification before it implements the classification.  See infra at

___.  Even if the proper factual basis existed, we believe that the

three reasons JUSTICE STEVENS proffers, separately or combined, would

not amount to a compelling interest.  First, the dissent seems to

acknowledge that its initial reason -- the "sorry history of race

relations in North Carolina," post at ___ -- did not itself drive the

decision to create the minority districts, presumably for the reasons we

discuss infra at ___.  The dissent contends next that an "acceptable

reason for creating a second majority-minority district" was the

"State's interest in avoiding the litigation that would have been

necessary to overcome the Attorney General's objection" under  5.  Post

at ___.  If this were true, however, Miller v. Johnson would have been

wrongly decided, because there the Court rejected the contention that

complying with the Justice Department's preclearance objection could be

a compelling interest.  Miller, supra, at ___.  It necessarily follows

that avoiding the litigation required to overcome the Department's

objection could not be a compelling interest.  The dissent's final

reason -- "the interest in avoiding the expense and unpleasantness of [

2] litigation" "regardless of the possible outcome of [that]

litigation," post at ___ -- sweeps too broadly.  We assume, arguendo,

that a State may have a compelling interest in complying with the

properly interpreted Voting Rights Act.  Infra at ___.  But a State must

also have a "strong basis in evidence," see Shaw I, supra, at ___

(quoting Richmond v. J. A. Croson Co., 488 U.S. 469, 500 (1989)), for

believing that it is violating the Act.  It has no such interest in

avoiding meritless lawsuits.



5. For examples of this limitation in application see Wygant, 476 U.S.

at (where a plurality of the Court concluded that remedying societal

discrimination and promoting role models for students was not a

compelling interest); Richmond v. J. A. Croson Co., 488 U.S. 469,

(1989).



6. The United States attempts to distinguish this case from Miller by

relying on the District Court's finding that North Carolina conducted

"its own independent reassessment" of Chapter 601 and found "the

Department's objection was legally and factually supportable."  Brief

for United States as Amicus Curiae 25; 861 F.Supp. 408, 474 (1994) (case

below).  The "reassessment" was the legislature's determination that it

may be susceptible to a  2 challenge.  Id. at 464-465.  Even if the

General Assembly properly reached that conclusion, we doubt that a

showing of discriminatory effect under  2, alone, could support a claim

of discriminatory purpose under  5.  Even if discriminatory purpose

could be shown, the means of avoiding such a violation could be

race-neutral, and so we also doubt that the prospect of violating the

purpose prong of  5 could justify a race-based redistricting plan such

as the one implemented by North Carolina.



7. We do not suggest that where the governmental interest is eradicating

the effects of past discrimination the race-based action necessarily

would have to achieve fully its task to be narrowly tailored.



8. JUSTICE STEVENS in dissent argues that it does not matter that

District 12 could not possibly remedy a  2 violation, because he

believes the State's plan would avoid  2 liability.  Post at ___.  As

support, JUSTICE STEVENS relies on our decision in Johnson v. De Grandy,

512 U.S. ___ (1994), which he reads to say that "a plaintiff cannot make

out a prima facie case of vote dilution under  2 unless he can

demonstrate that his proposed plan contains more majority-minority

districts than the State's."  Id. (citing De Grandy, supra, at ___). 

The dissent's reading is flawed by its omission.  In De Grandy, we

presumed that the minority districts drawn in the State's plan were

lawfully drawn and, indeed, we expressly stated that a vote dilution

claim under  2 "requires the possibility of creating more than the

existing number of reasonably compact districts with a sufficiently

large minority population to elect candidates of its choice."  De

Grandy, supra, at ___ (emphasis added).



9. This does not mean that a  2 plaintiff has the right to be placed in

a majority-minority district once a violation of the statute is shown. 

States retain broad discretion in drawing districts to comply with the

mandate of  2.  Voinovich v. Quilter, 507 U.S. 146, (1993); Growe v.

Emison, 507 U.S. 25, 32-37 (1993). STEVENS, J., dissenting (Footnotes)



1. Tr. of Oral Arg. 58.



2. Counsel went so far as to liken the State's districting plan to

State-run water fountains that are available to citizens of all races

but are nevertheless labeled "Black" and "White."  He argued that the

State's race-based redistricting map constituted an unlawful racial

classification in the same way that the signs above the fountains would.

 Although neither racial classification would deprive any person of a

tangible benefit -- water from both fountains and effective political

representation would remain equally available to persons of all races --

each would be unconstitutional because of the very fact that the State

had espoused a racial classification publicly.  Id. at 5-6.



3. There, a majority of the Court stated that [w]e have consistently

held that a plaintiff raising only a generally available grievance about

government -- claiming only harm to his and every citizen's interest in

proper application of the Constitution and laws, and seeking relief that

no more directly and tangibly benefits him than it does the public at

large -- does not state an Article III case or controversy. Lujan v.

Defenders of Wildlife, 504 U.S. at



4. The Court's decision in Powers v. Ohio, 499 U.S. 400 (1991), and

Batson v. Kentucky, 476 U.S. 79 (1986), are not to the contrary.  There,

we have held that defendants have third-party standing, no matter what

their race, to assert the rights of jurors, who have been deprived

because of their race of a benefit available to all others.  No voter in

this litigation has shown either that he has uniquely been denied an

otherwise generally available benefit on account of race, or that anyone

else has.



5. As I have explained, even if the Hays test showed that much, it would

still only demonstrate that the State had used geography, rather than

race, to select the citizens who would be deprived of a  color blind

districting process.



6. That is particularly true here because the author of the District

Court opinion was also the author of the District Court opinion in

Gingles v. Edmisten, 590 F.Supp. 345 (EDNC 1984), aff'd in part, rev'd

in part, Thornburg v. Gingles, 478 U.S. 30 (1986).



7. For example, the State argued that it drew the majority-minority

district under review so that it would follow precinct lines, but the

Court found that precinct lines had been relied on only because they

happened to facilitate the State's effort to achieve a particular racial

makeup.  Similarly, the State argued that District 11 was drawn in order

to ensure that communities of interest would be kept within a single

district, but the Court found that no such communities could be found

within the district's boundaries.  See Miller v. Johnson, 515 U.S. at

___-___.



8. It is unclear whether the majority believes that it is the

combination of these two pieces of evidence that satisfies Miller, or

whether either one would suffice.



9. Citing to trial and deposition testimony, the majority also relies on

a statement by North Carolina's chief mapmaker, Gerry Cohen, that the

creation of a majority-minority district was the "`principal reason'"

for the configurations of District 1 and District 12.  Ante at ___.  Mr.

Cohen's more complete explanation of the "`principal reason'" was to

create "two majority black districts that had communities of interest

within each one."  Tr. 514.  What Mr. Cohen admitted, therefore, was

only that the State intentionally drew a majority-minority district that

would respect traditional districting principles.  Moreover, Mr. Cohen's

"admission" in his deposition only pertained to District 1.  App. 675. 

Finally, he explained in his deposition that "other reasons" also

explained that District's configuration.  Ibid.  Absent a showing that

those "other reasons" were race-based, Mr. Cohen's admission does not

show that North Carolina subordinated race-neutral districting criteria

in drawing District 1; it shows only that the need to comply with

federal law was critical.



10.  In DeWitt v. Wilson, 856 F.Supp. 1409 (ED Cal. 1994), for example,

the State conceded that compliance with  5 of the Voting Rights Act

constituted the one unavoidable limitation on its redistricting process.

 Id. at 1410.  Nevertheless, we affirmed the District Court's conclusion

that strict scrutiny did not apply because the State gave significant

weight to several race-natural considerations in meeting that goal.  Id.

at 1415.  Moreover, in Miller v. Johnson, the Court applied strict

scrutiny only after it concluded that the State considered only race in

adding African American voters to District 11; it did not hold that

Georgia's general admissions about its desire to comply with federal law

themselves sufficed.  515 U.S. at ___-___.



11. The State Constitution sets forth no limitation on districting for

federal offices.  Moreover, the state-prepared 1991 Legislator's Guide

to North Carolina Legislative and Congressional Redistricting points out

that the state law prohibition against dividing counties in formulating

state electoral districts was eliminated in the 1980's.  See

Legislator's Guide to North Carolina Legislative and Congressional

Redistricting 12 (Feb. 1991).



12. Indeed, the State's guide to redistricting specifically informed

state legislators that compactness was of little legal significance.

Neither the State nor federal constitution requires districts to be

compact.  Critics often refer to the lack of compactness of a particular

district or group of districts as a sign of gerrymandering, but no court

has ever struck down a plan merely on the basis that it did not appear

to be compact.  Although there are geometric methods for measuring the

compactness of an area, these methods have not been recognized as

judicial standards for evaluating the compactness of districts.  The

recent decision in Davis v. Bandemer . . . mentions irregularly-shaped

districts as a possible sign of gerrymandering, but makes clear that

irregular shapes alone do not invalidate a redistricting plan. Ibid.



13. The State's decision to give little weight to how the district would

look on a map is entirely justifiable.  Although a voter clearly has an

interest in being in a district whose members share similar interests

and concerns, that interest need not, and often is not, vindicated by

drawing districts with attractive shapes. [The Districts] perceived

"ugliness" -- their extreme irregularity of shape -- is entirely a

function of an artificial perspective unrelated to the common goings and

comings of the citizen-voter.  From the mapmaker's wholly imaginary

vertical perspective of 1:25,000 or so range, a citizen may well find

his district's one-dimensional, featureless shape aesthetically

"bizarre," "grotesque," or "ugly."  But back down at ground or

eye-level, viewing things from his normal closely-bound horizontal

perspective, the irregularity of outline or exact volume of the district

in which he resides surely is not a matter of any great practical

consequence to his conduct as a citizen-voter. 861 F.Supp. 408, 472, n.

60 (EDNC 1994).  In the same vein, I doubt that residents of hook-shaped

Massachusetts receive less effective representation than their

counterparts in perfectly rectangular Wyoming, or that the voting power

of residents of Hawaii is in any way impaired by virtue of the fact that

their State is not even contiguous.



14. It is ironic that despite the clear indications that party politics

explain the district's odd shape, the Court affirmed the district

court's dismissal of the plaintiffs' partisan gerrymandering claim.  See

Pope v. Blue, 506 U.S. 801 (1992).



15. Interestingly, the Justice Department concluded that it was the

State's impermissible desire to favor white incumbents over African

American voters that explained North Carolina's refusal to create a

second district and thus gave rise to a violation of the purpose prong

of  5 of the Voting Rights Act.  See Shaw I, 509 U.S. 630, ___ (1993). 

Of course, the white plaintiffs before us here have no standing to

object to District 12 on similar grounds.



16. Although the majority asserts that North Carolina "subordinated"

traditional districting principles to racial concerns because "[r]ace

was the criterion that, in the State's view, could not be compromised,"

ante at ___, no evidence suggests that North Carolina would have

sacrificed traditional districting principles in order to draw a second

majority-minority district.  Rather, the record reveals that the State

chose District 12 over other options so that its plan would remain

faithful to traditional, race-neutral districting criteria.  If strict

scrutiny applies even when a State draws a majority-minority district

that respects traditional districting principles, then I do not see how

a State can ever create a majority-minority district in order to fulfill

its obligations under the Voting Rights Act without inviting

constitutional suspicion.  I had thought that the "demanding" standard

Miller established, Miller v. Johnson, 515 U.S. at ___ (O'CONNOR, J.,

concurring), as well as our summary affirmance in DeWitt, reflected our

determination that States should not be so constrained.



17. Although Attorney General Reno has endorsed the position taken by

the Republican administration in 1991, it was her male predecessor who

refused to preclear the State's original plan.



18.  While the majority is surely correct in stating that the threat of

a lawsuit, however unlikely to succeed, does not constitute a compelling

interest, ante at ___, n. 4, it does not follow that a State has no

compelling interest in avoiding litigation over a substantial challenge.

 Here, of course, the District Court found that North Carolina premised

its decision to draw a second-majority minority district on its

reasonable conclusion that it would otherwise be subject to a successful

 2 challenge, not a "meritless" one.  Ibid.



19. Interestingly, although this Court in Thornburg v. Gingles held that

 2 plaintiffs must demonstrate that they live in "compact"

majority-minority districts, we affirmed the district court which had

found that the plaintiffs' proposed districts were contiguous but not

compact.  478 U.S. at 38.  Arguably, therefore, the State could have

reasonably concluded that the maps proposing District 12 would have

themselves provided the foundation for a viable  2 suit.  For a

discussion of how compact "compact" districts must be, see Karlan, Maps

and Misreadings:  The Role of Geographic Compactness in Racial Vote

Dilution Litigation, 24 Harv.Civ.Rights-Civ.Lib.L.Rev. 173, 199-213

(1989).  See also Dillard v. Baldwin County Bd. of Ed., 686 F.Supp.

1459, 1465-1466 (MD Ala. 1988); Houston v. Lafayette County, Miss., 56

F.3d 606, 611 (CA5 1995).



20. Moreover, Mr. Cohen, the State's chief mapmaker, testified at trial

that in statewide elections, Native Americans and African Americans in

the southeastern portion of North Carolina had voted for the same

candidates.  Tr. 411-412.



21. The majority's assertion that De Grandy only requires a plaintiff to

show that more "reasonably compact" majority-minority districts could

have been drawn would seem to expand dramatically a State's potential

liability under  2.  Ante at ___, n. 8.  I would have thought that a

State that had drawn three majority-minority districts, one of which was

"reasonably compact" and two of which straggled in order to preserve

certain distinctive communities of interest, would at the very least be

immune to a challenge by a single African American plaintiff bearing a

map proposing to draw but two compact majority-minority districts.  The

Court's expansive notion of  2 liability, combined with its apparent

eagerness to subject all legislative attempts to comply with that Act to

strict scrutiny, will place many States in the untenable position of

facing substantial litigation no matter how they draw their maps.  See

Miller v. Johnson, 515 U.S. at ___ (GINSBURG, J., dissenting).  Of

course, a State that unfairly "packs" African American voters into a

limited number of districts may be subject to a  2 challenge on the

ground that it failed to create so-called "influence" districts, and

perhaps the majority means to endorse that proposition as well.  I note

here, however, that there is no indication that such a challenge could

be successfully brought against North Carolina's two majority-minority

district plan, which creates districts with only bare African American

majorities.



22. The Court's strict analysis in this case is in some tension with the

more reasonable approach endorsed by JUSTICE O'CONNOR this same day.  On

her view, state legislatures seeking to comply with the Voting Right Act

clearly possess more freedom to draw majority-minority districts than do

federal courts attempting to enforce it.  Bush, post at ___ (O'CONNOR,

J., concurring).



23. That judicial creativity rather than constitutional principle

defines the narrowing tailoring requirement in this area of our law is

clear from Bush's quite different analysis of the same question.  See

Bush, post at ___.

