The one person–one vote rule enunciated by the Supreme Court in Reynolds v. Sims proved to be readily applicable and less disruptive than many ob servers initially had anticipated (McKay 1968). Compliance required little more than sufficiently detailed maps and basic computational skills, and state legislatures were eventually given some flexibility, within the equal population constraint, to provide representation for political subdivisions when drawing their own district lines. But what would happen when redis tricting controversies centered not around conflict between urban and rural voters, but instead featured racial and language minorities with long histo ries of exclusion from the political arena? And how would the interaction of partisan politics with race and ethnicity affect redistricting battles? Over thirty-five years have passed since the Voting Rights Act’s enactment, yet debates over minority representation and political participation remain live ly, as a perusal of law reviews, political journals, and newspaper editorial pages illustrates. After surveying the historical factors that made comprehensive voting rights protections necessary, I pursue two goals in this chapter. The first is to trace two lines of cases emerging from the Voting Rights Act: (a) minority vote dilution cases, brought under Section 2 of the act, and (b) cases featur ing “wrongful districting” (Karlan 1996, 290) or “district appearance” (Pil des and Niemi 1993, 493) claims, actionable under the Fourteenth Amendment. The second is to examine the more significant tensions present in each line of cases, with an eye toward informing the evaluation, featured in chapter 4, of judicial performance in redistricting controversies.

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The evolution of voting rights jurisprudence How the franchise was lost
The 1965 Voting Rights Act might not have been necessary if earlier generations had enforced the Fifteenth Amendment, which bars national and state governments from denying or abridging the franchise “on account of race, color, or previous condition of servitude.” This amendment also au thorizes Congress to bolster voting rights protections through legislation. In addition to proposing the Fifteenth Amendment, the Reconstruction Con gress enacted a series of laws designed to protect black voters from both public and private attempts to deny the franchise. Yet the amendment’s promise went unfulfilled for almost a century. Why did the amendment fail to ensure that voting rights would be protected? The Fifteenth Amendment’s unfulfilled promise had its roots in the amendment’s language, or, more precisely, in the language its drafters omit ted. The amendment prohibited the denial or abridgment of the right to vote, but it left “denial” and “abridgment” undefined. It did not include language banning states from imposing property, literacy, or educational qualifica tions on potential voters. Nor did it touch upon the rights of blacks to hold office. These failures were not purely the product of insufficient commit ment to black suffrage; Northerners sought to impose and maintain their own qualifications to prevent various groups—Southern rebels, the poor, the illit erate, the foreign-born 1 —from voting (Foner 1988, 446–47). Still, the amendment’s textual limitations left open the possibility that black voting rights would suffer if public sentiment turned negative on civil rights. In the post-Reconstruction era, that possibility became a reality that manifested itself in two forms: adverse Supreme Court decisions and the Republican Party’s declining commitment to the freedmen’s position. Throughout the 1870’s and 1880’s, the Supreme Court interpreted the Civil War amendments and supporting legislation so as to render them inef fective in protecting civil rights. In the Slaughterhouse Cases (1873), the Court noted that the Fourteenth Amendment’s primary purpose was to pro tect the freedmen’s rights, but this acknowledgment was undercut by the majority’s distinction between national citizenship, which was covered by the amendment’s privileges and immunities clause, and state citizenship, which was not. Since most rights that mattered to freedmen were considered to fall within the states’ domain, the Court’s construction gutted the amend ment’s potential utility for its intended beneficiaries. In United States v. Reese (1876), the Court threw out the indictments of two Kentucky election officials who had allegedly prevented a black man from voting. Because the

Origins of Contemporary Voting Rights Controversies
39 relevant sections of the 1870 Enforcement Act were not limited to racially motivated actions, Congress, according to the Court, had exceeded its power under the Fifteenth Amendment. Two additional holdings, in United States v. Cruikshank (1876) and United States v. Harris (1882), declared that the federal government was authorized by the Civil War amendments to prohibit only those civil rights violations committed by state actors who intended to discriminate; violations committed by private citizens were to be addressed by state and local officials.
2 This distinction between state action and private action crippled federal anti-discrimination efforts by assigning responsibility for preventing private violence against freedmen to the very officials who were most likely to tolerate, or even abet, such violence. The Court, in Ex Parte Yarborough (1884), did uphold the 1870 Enforcement Act and affirm the convictions of eight white men charged with beating a black man seeking to vote in a federal election, but this decision remained the exception for some time. At the same time that the Supreme Court undermined civil rights gains through its construction of the Fourteenth Amendment, the Republican Party allowed its once-considerable commitment to civil rights to wane, especially after the 1896 elections (Vallely 1995). During Reconstruction, congression al Republicans passed significant legislation aimed at protecting freedmen: the 1870 Enforcement Act, the 1871 Ku Klux Klan Act, and the 1875 Civil Rights Act, a precursor in many ways to the 1964 Civil Rights Act.
3 Repub licans did not limit themselves to passing legislation; they also acted to en force it, as in their 1871–1872 campaign against the Ku Klux Klan. Furthermore, contrary to conventional wisdom, Republicans’ commitment to civil rights did not die with the Compromise of 1877. Republicans fought for stricter voting rights legislation, investigated questionable election practices in the South, and ran candidates in most contests for Southern congressional seats. In much of the South, blacks still voted and ran for public office, sometimes successfully, well into the 1880’s and early 1890’s (Kousser 1992, 140). But the movement away from active support of civil rights had already begun. Protecting civil rights became more difficult once federal troops had been withdrawn from the South under the Compromise of 1877. The trend accelerated with the Republicans’ landslide victory in the 1896 election, as the national party leadership recognized that electoral success outside the South made Southern votes more expendable. Once the national Republican Party’s waning interest in the South had become evident, support for the par ty dried up at the local level. More significantly for the freedmen, the de cline of Republican civil rights support signaled to Southern Democrats that

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black voters could be disfranchised with impunity. Attempts to strip South ern blacks of the franchise dated back to the 1860’s, but the strongest push started at the end of Reconstruction and peaked during the wave of state constitutional conventions of the 1890’s. Disfranchisement served two goals. First, it enabled whites to reestablish their dominance over blacks in the po litical sphere, which would translate into and reinforce economic and social dominance.
4 Second, it disqualified a sizable pool of Republican voters, thus hastening the emergence of one-party control of Southern politics. Disfranchisement took many forms.
5 The less subtle state-imposed barri ers to suffrage included poll taxes (which had been enacted in all eleven ex Confederate states by 1908 [Kousser 1984, 34]), literacy tests, property qualifications, and “petty crimes” provisions.
6 Each of these barriers was race-neutral on its face but racially discriminatory in practice, as states placed onerous restrictions on registrants while granting registrars broad dis cretion to challenge voters. As a result, whites who lacked wealth, literacy, or an ancestor who fought for the Confederacy might still be permitted to vote, unlike similarly situated blacks. Blacks who somehow ran this gauntlet successfully still faced the challenge of actually casting a ballot. Polling place irregularities, such as unannounced relocations and arbitrary opening and closing hours, were prevalent, especially in locales where Republicans were likely to fare well (Kousser 1984, 35). Violence, intimidation, and fraud also proved an effective deterrent to Southern opponents of the Demo cratic Party. Changes in electoral structure reinforced these practices. Racial gerry mandering during the 1880’s and 1890’s packed black voters into contorted districts so as to minimize the number of contests they could influence, or it purged black voters altogether through de-annexation. Another exclusionary electoral mechanism was the white primary, which was widely adopted in constitutional conventions throughout the South at the turn of the century.
7 Direct primaries, introduced by Progressives as “good government” reforms, were easily adapted to eliminate black electoral influence by (1) barring black participation in local Democratic Party primaries, and (2) prohibiting defeated primary candidates from running in general elections. As a result of these adaptations, black voters were denied any opportunity to influence elections by forming coalitions with some faction within the white electorate (Kousser 1984, 39; Key 1949, 8, 541). More subtly, many municipalities adopted at-large elections as part of a package of Progressive reforms that included the nonpartisan ballot and the commission and city-manager forms of government. The switch from district -based elections to at-large elections was motivated by various factors. Re-

Origins of Contemporary Voting Rights Controversies
41 moving district elections, according to many Progressives, would limit the influence of machine politics, bring a more scientific efficiency to local gov ernment (Davidson and Korbel 1984, 68), and encourage candidates to pur sue jurisdiction-wide interests instead of more provincial ones. But the switch was also intended to limit the electoral strength of particular groups. In the South, both white Republicans and blacks found themselves disadvan taged by the winner-take-all nature of at-large elections; in urban areas throughout the nation, working-class candidacies suffered because candi dates lacked the resources needed to conduct citywide campaigns. At-large elections and white primaries were crucial for white domination of Southern politics because, despite the numerous restrictions on suffrage, thousands of black voters remained on the voting rolls. These blacks were largely urban, literate, and wealthy (at least in comparison to sharecroppers), and they con stituted a potentially important swing vote in municipal elections, which generally featured low turnout (Kousser 1984, 39). At-large elections, in short, would remove whatever electoral influence Southern blacks pos sessed, and this observation was not lost on a later generation of Southern legislators.
The Supreme Court on voting rights pre-1960’s
In the six decades preceding the Voting Rights Act’s passage, the Su preme Court had a mixed record on voting rights. The Court did strike down such impediments to black political participation as the grandfather clause, 8 the white primary, 9 and discriminatory slating practices by quasi governmental actors.
10 The Court also voided the blatantly discriminatory de-annexation attempted by the Alabama legislature in Gomillion v. Light- foot (see chapter 1). However, other obstacles, such as the poll tax 11 and lit eracy tests, 12 were not prohibited outright because they were not discriminatory per se. What impact did these holdings have on black suffrage in the South?
13 Black registration in much of the South did increase steadily over the twen ty-five years preceding the Voting Rights Act (Garrow 1978, 7, 11, 19). But the effect of favorable judicial decisions was offset by increased white re sistance, especially in the wake of the Supreme Court’s landmark ruling in Brown v. Board of Education (1954) (Garrow 1978, 9). Southern legislatures found ways to evade the Court’s dictates, and potential litigants faced sub stantial obstacles. Legal challenges could be deterred by a lack of funds needed to pursue prolonged litigation, as well as by threats of reprisal by white officials and employers. Furthermore, judicial holdings addressed election law in a piecemeal fashion. A comprehensive change in voting

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rights law was needed, but the judicial route to that destination had already proved too roundabout for the tastes of civil rights leaders.
Congress enters the voting rights arena
Given Southern intransigence and civil rights leaders’ awareness of the limits of litigation, Washington became the logical arena in which to pursue meaningful voting rights protection (Lawson 1976, 116). Congress had passed three civil rights acts between 1957 and 1964, but none of these laws significantly affected voting in the South.
14 Both the 1957 and 1960 Civil Rights Acts focused on making voting rights litigation more effective in combating discrimination. The 1957 act empowered the Justice Department to intervene in civil suits on behalf of private civil rights claimants, and al lowed the attorney general to seek injunctive relief in federal district court against Fifteenth Amendment violators. In instances where the Justice De partment had removed civil rights cases from state courts, which were pre sumed hostile to civil rights, special three-judge federal district courts would have jurisdiction. The act also outlawed actual and attempted intimidation of potential registrants or voters. This legislation, however, proved ineffective. Only four voting rights suits were filed by the attorney general in the three years following the act’s passage, largely because the Justice Department authorized investigations of discriminatory registration systems only in response to formal, written com plaints from residents (Grofman, Handley, and Niemi 1992, 13). Such com plaints were predictably rare, as potential complainants were rural Southern blacks who generally lacked access to legal advice and knowledge (Garrow 1978, 13; Lichtman 1969, 347–48). When the Justice Department did liti gate, it found itself hamstrung by a lack of access to registration records, as well as the willingness of state legislators to exploit opportunities for delay in the judicial process (Garrow 1978, 14). The 1960 Civil Rights Act was designed to address some of these defi ciencies. It allowed federal district court judges to remedy discrimination in voting by appointing federal referees to replace state registration officials. Federal referees would register all applicants who met either the state’s offi cial voting requirements or its de facto standards, whichever were less strin gent. To ensure access to registration records, the 1960 measure required that local voting records be preserved for at least twenty-two months follow ing an election and be available to the attorney general upon request. In addi tion, the act made states potentially liable for actions taken by their registrars, thereby preventing states from escaping liability by having their registrars resign after an election.
15 Still, litigation under the 1960 act was

Origins of Contemporary Voting Rights Controversies
43 sporadic, and its effects on black suffrage were limited by a variety of fac tors: resistance from some federal trial judges, 16 defiance by local registra tion officials of court orders demanding access to registration records, and state legislatures that opened new loopholes whenever existing loopholes were closed. The 1964 Civil Rights Act placed substantive restrictions on the use of literacy tests, 17 but like the preceding enactments, it relied on a litigation-oriented approach. Perhaps the most significant impact of these laws stemmed from the Supreme Court’s willingness to uphold them, 18 thus signaling to Congress that subsequent voting rights legislation would proba bly pass muster (Grofman, Handley, and Niemi 1992, 14–15).
The 1965 Voting Rights Act
Nineteen sixty-five was an opportune time for civil rights forces to press for comprehensive voting rights legislation. Continuing violence against civ il rights activists throughout the South kept the plight of Southern blacks at the forefront of the nation’s consciousness and gave the push for full voting rights a heightened immediacy. The civil rights cause also benefited from Lyndon Johnson’s landslide victory in the 1964 presidential election. John son had made voting rights a domestic policy priority even before Selma, and his 1965 State of the Union address called for the national government to “eliminate every remaining obstacle to the right and the opportunity to vote” (Garrow 1978, 36, 40). The Voting Rights Act, passed later that year, sought to outlaw the more flagrant obstacles to black suffrage; at the same time, however, the act’s scope extended beyond banning invidiously utilized practices. What com pelled Congress to impose wide-ranging constraints was the expectation that Southern states would search for loopholes in any voting rights legislation. Congressional civil rights supporters recognized that existing barriers to suf frage were produced by facially neutral statutes that were enforced in dis criminatory fashion so as to deter black voting. At the same time, Congress could not fully anticipate what evasive strategies might later arise (Derfner 1984, 149). The kinds of issues that were litigated after 1965 revealed the prescience of the act’s drafters in pushing for broad-based legislation. The Voting Rights Act authorized federal supervision of elections on a scale not seen since Reconstruction. The emphasis on such matters as federal observers and literacy tests reflected immediate concerns with problems that persisted in the more recalcitrant Southern jurisdictions. But the act’s most controversial mandate, defined by the special preclearance provisions con tained in Sections 4–9, was more forward-looking; it sought to prevent states from replacing outlawed forms of abridgment with ingenious new forms.

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Under Section 4, jurisdictions were subject to the act’s special provisions if, as of November 1, 1964, they had used tests or devices as preconditions for registration or voting, and under 50 percent of their voting-age population was either registered to vote or had actually voted in the 1964 election. Cov erage could apply to individual counties, as occurred initially in North Caro lina, as well as entire states, which in 1965 applied to Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. Jurisdictions not cov ered under the special provisions could still be subject under Section 3 to various forms of intervention—appointment of federal examiners and ob servers, suspension of tests and devices, and preclearance requirements— should a federal court deem such measures necessary to enforce the Fif teenth Amendment. But the act was directed primarily at the South, and the special provisions’ requirements reflect that emphasis. The special provisions also shifted the balance of power between the federal government and states seeking to preserve limits on voting rights. Previous voting rights laws allowed the inertia inherent in litigation to bene fit opponents of expanded suffrage. Under the 1965 measure, however, delay was made to work in favor of civil rights interests. Section 4 suspended for five years the use of all “tests and devices” in covered jurisdictions, and Sec tions 6–8 authorized the Civil Service Commission to assign federal registra tion officials and election observers to covered jurisdictions, upon the attorney general’s request. Most significantly, Section 5 required covered jurisdictions to receive approval from either the attorney general or the U.S. District Court for the District of Columbia before adopting any new voting qualifications or voting-related practices or standards. Unlike previous measures, which in practice required federal officials to prove on a case-by case basis that voting laws and practices were racially motivated, the special provisions assigned to covered jurisdictions the burden of proving that pro posed changes were not discriminatory in intent or effect. Furthermore, es caping Section 5 coverage was possible only through demonstrating, in a declaratory judgment action filed in the U.S. District Court for the District of Columbia, that no tests or devices intended to deny or abridge the fran chise had been used in the five years preceding the filing. Of the provisions not limited to covered jurisdictions, Section 2 ulti mately had the greatest impact. Written in language parallel to the Fifteenth Amendment, Section 2 shared with Section 5 the intent to keep the law one step ahead of attempts to limit the franchise; it outlawed any “voting qualifi cation or prerequisite to voting, or standard, practice or procedure” that would deny or abridge the right to vote. Two subsequent legal developments heightened Section 2’s significance: (1) the 1982 amendments to the Voting

Origins of Contemporary Voting Rights Controversies
45 Rights Act, which will be discussed later in this chapter; and (2) the Justice Department’s decision in 1987 to require jurisdictions seeking preclearance under Section 5 to meet Section 2 standards (Department of Justice 1989, 574).
19 The passage and implementation of the Voting Rights Act, coupled with the Supreme Court’s affirmation of the act’s constitutionality in South Caro- lina v. Katzenbach (1966), brought an end to “first-generation litigation” (Guinier 1991a), which attacked barriers to registration and voting. The law’s preclearance requirements (Sections 4 and 5), suspensions of tests and devices traditionally used to hinder black voting (Section 4), and provisions authorizing the assignment of federal registration examiners and election observers to covered jurisdictions (Sections 6–8) led to substantial gains in black registration. In the seven states covered in their entirety under Section 5, black registration rose from an average of 29.3 percent of the voting-age population in March 1965 to 52.1 percent in September 1967 (Grofman, Handley, and Niemi 1992, 23).
20 The next generation of litigation extended its focus beyond the casting of ballots and sought to challenge the methods by which votes were translated into electoral outcomes.
Beyond the ballot box
Many white Southern political leaders, having failed in their frontal le gal challenge to the Voting Rights Act in Katzenbach, were quick to search for soft spots in the act. Stripped of the ability to bar black voting directly, they moved to limit the value of black voters’ ballots by changing electoral mechanisms, an action state officials believed to be beyond the reach of the Voting Rights Act. Some of these changes—racial gerrymandering, exclu sive slating, and making formerly elective offices appointive (Davidson 1984b; Davidson and Fraga 1984)—were transparent attempts to devalue black votes. Creative mapmakers could overconcentrate or disperse black voters so as to minimize their effectiveness; powerful local slating groups could deny minorities any say in candidate selection; and switching from elective to appointive offices transferred power from (black) voters to (white) appointers. The Supreme Court’s first opportunity to define the scope of Section 5 came in 1969 when it decided Allen v. State Board of Education and three other cases jointly. Allen featured challenges to various changes in state election law adopted after the Voting Rights Act’s passage. Mississippi au thorized a switch from district elections of county supervisors to at-large contests; mandated that superintendents of education in eleven counties be appointed, where previously these counties could have opted for elections;

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and added requirements adversely affecting independent candidates in gen eral elections.
21 The state contended that its changes did not implicate Sec tion 5, because the preclearance requirement applied only to laws affecting registration and voting, and not to changes in electoral systems. In a unani mous decision, the Court rejected Mississippi’s argument and held that Sec tion 5 applied to all election laws that dilute or intend to dilute black voting strength. The decision also established the right of private parties to chal lenge unsubmitted changes, and held that while local federal district courts could determine the relevance of Section 5 requirements to the disputed changes, only the District Court for the District of Columbia or the attorney general had authority to preclear. Subsequent holdings further defined Section 5’s contours while main taining its expansive scope. The Court held that Section 5’s preclearance requirements applied to attempts to move polling places and to annex territo ry (Perkins v. Matthews [1971]), as well as to redistricting plans (Georgia v. U.S. [1973]). Annexations that reduce a city’s black population were deemed permissible under Section 5 only when the post-annexation districting plan “fairly reflects the strength of the Negro community as it exists after the an nexation” and “afford[s] representation reasonably equivalent to [its] politi cal strength in the enlarged community” (City of Richmond v. U.S. [1975, 370–71]). And, in a decision with major repercussions for the 1980 and 1990 rounds of redistricting, the Court in Beer v. U.S. (1976) held that to satisfy Section 5, redistricting must not result in retrogression of minority electoral strength, measured in terms of the number of majority-minority districts cre ated. Southern jurisdictions also responded to the Voting Rights Act by adopt ing at-large elections, which were intended to allow white majorities to con trol all legislative seats through bloc voting. At-large elections were hardly unique to the South: in 1960, three-fifths of cities with populations exceed ing 10,000 elected their city councils at-large, while approximately one in four elected exclusively by district (Banfield and Wilson 1963, 88). None theless, Southern jurisdictions were the most likely to shift from district based elections to at-large elections, especially after 1965 (Davidson 1994, 24–27). Adoptions coming before 1965 were left untouched by the Voting Rights Act until the 1982 amendments were passed, but changes occurring after the act’s passage presented immediate challenges to Section 5. While the Supreme Court was reluctant to label multimember districting plans inherently unconstitutional, its dicta suggested an awareness of how such plans could adversely affect minority voting strength.
22 In Whitcomb v. Chavis (1971), the Court ruled for the first time that multimember districts

Origins of Contemporary Voting Rights Controversies
47 could be challenged in federal court on equal protection grounds, but it up held the use of at-large elections in Marion County (Indianapolis), Indiana’s state legislative seats. Plaintiffs, pointing to evidence that the number of black legislators representing Marion County was disproportionately low relative to the county’s black population, claimed that county-wide at-large elections impermissibly diluted their voting power. In ruling for the state, the Court held that a lack of proportionality did not constitute sufficient proof to sustain a constitutional vote dilution claim. Instead, plaintiffs would have to prove that the challenged electoral system limited racial minorities’ ability “to participate in the political process and to elect legislators of their choice” (Whitcomb, 149). Two years later, in White v. Regester (1973), the Court displayed a greater willingness to consider the effects of dilutionary electoral mecha nisms and practices. In a unanimous decision, the Court held that the multi member state legislative districts used in two urban Texas counties 23 diluted black and Mexican-American electoral strength in violation of the Equal Protection Clause. Deferring to the trial court’s evaluation of the state’s electoral history, the Court identified several features that, when considered under the “totality of the circumstances,” resulted in a denial of equal access to the political arena. These factors included the state’s history of official racial discrimination, which included segregation, use of the white primary system, and the poll tax; multimember districting combined with a majority vote requirement and a place system without any residency requirements; white-dominated slating organizations; electoral campaigns featuring race based appeals; an absence of minority electoral officials in the community; and the election of candidates who were “insufficiently responsive” to mi nority interests (White, 769). Unequal access was defined further by the Fifth Circuit in Zimmer v. McKeithen (1973), which offered a long list of factors that could combine to dilute minority voting strength.
24 The Zimmer standard underpinned other vote dilution holdings of the 1970’s (U.S. Senate 1982, 23), and much of it eventually found its way into the legislative histo ry of the 1982 amendments to Section 2. Changes in the Supreme Court’s equal protection jurisprudence, howev er, left the Fourteenth Amendment ineffectual for vote dilution claimants. In a series of decisions, the Court held that proving discriminatory impact was insufficient to sustain an equal protection claim. Rather, one would have to prove, through direct or indirect evidence, that the challenged policy reflect ed discriminatory intent, a more stringent standard.
25 Lower courts welded the intent requirement to the Zimmer test by holding that plaintiffs could prove discriminatory purpose by offering evidence that an electoral scheme

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either was adopted or maintained with a discriminatory purpose in mind, or furthered preexisting discrimination.
26 The Supreme Court, however, took a different course in City of Mobile v. Bolden (1980), which involved at-large elections for city council. There, a 6–3 majority held that proof of discrimi natory purpose was needed to sustain a claim of unconstitutional vote dilu tion.
27 This holding erected sizable obstacles for vote dilution claimants to clear, as evidence relating to motivation is often hard to come by. Legisla tors who favored at-large systems at the turn of the century are now dead and thus unavailable for comment, and the documentary evidence they left be hind rarely includes any smoking guns concerning invidious intent (Parker 1984, 101). Bolden’s significance was magnified by its timing, as the decision was issued just before the Voting Rights Act’s scheduled expiration. Congress had extended the act twice, in 1970 and 1975, and neither extension proved controversial. Bolden’s challenge to prevailing voting rights enforcement, however, made the act’s extension a priority for civil rights groups and their supporters on Capitol Hill. Congress reacted to Bolden by restoring the pre Bolden discriminatory results standard and situating it within Section 2. As originally written, Section 2 paralleled the Fifteenth Amendment and “was intended to have an effect no different from that of the Fifteenth Amendment itself” (Bolden, 61). The revised Section 2, in contrast, transplanted from White v. Regester and Zimmer v. McKeithen a freestanding definition of vote dilution that did not rely on proving discriminatory purpose. More specifi cally, a Section 2 violation could be demonstrated by showing that “based on the totality of the circumstances…the political processes leading to nomina tion or election in the State or political subdivision are not equally open to participation” by members of a group protected under Section 2’s first sub section, “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representa tives of their choice.” 28 The new Section 2, in other words, enabled statutory vote dilution claims to supplant constitutional claims. The Supreme Court then administered the coup de grace to Bolden when, in Rogers v. Lodge (1982), it held that while constitutional vote dilution claims still required proof of discriminatory intent, such proof could include the White/Zimmer factors or other indirect evidence.
29 The revised Section 2 expanded opportunities to challenge at-large elec toral systems and other potentially dilutionary mechanisms, but it did not offer lower courts clear guidance as to its interpretation. The Senate Judici ary Committee’s report accompanying the 1982 amendments included an extensive list of possible indicators of vote dilution 30 and, like the Fifth Cir-

Origins of Contemporary Voting Rights Controversies
49 cuit in Zimmer, did not rank the significance of the criteria it offered. Nor did it state that any of these criteria would be necessary or sufficient to es tablish vote dilution: “There is no requirement that any particular number of factors be proved, or that a majority of them point one way or another,” in order for litigants to establish a Section 2 violation (U.S. Senate 1982, 29). Combined with the one person–one vote rule, Section 2 ensured a major role for judicial oversight of redistricting processes. Mandatory decennial redis tricting translated into more opportunities to challenge districting schemes, and highly fact-specific Section 2 inquiries into electoral mechanisms placed more discretion in judges’ hands (Karlan 1993, 1707). Without congressional guidance as to weighing the Senate Report fac tors, lower courts took conflicting approaches to interpreting Section 2. For example, while judges in various circuits agreed that racially polarized vot ing was a key component of a vote dilution inquiry, they disagreed substan tially over how to identify particular instances of racial bloc voting. Some courts defined polarization as a consistent pattern of same-race voting across elections featuring black and white candidates; 31 others argued for multivari ate analyses on the ground that non-racial factors might best explain what at first appears to be race-based voting.
32 In Thornburg v. Gingles (1986), the Supreme Court attempted to con strain judicial readings of Section 2. Invalidating a redistricting plan for North Carolina’s senate and house seats, the Court introduced a three-part threshold inquiry to determine when multimember districting plans violate Section 2. Justice Brennan, joined by four other justices, wrote that while the Senate Report factors might be relevant to proving vote dilution, plain tiffs first had to show that the minority group is “sufficiently large and geo graphically compact to constitute a majority of a single-member district,” politically cohesive, and vulnerable to having its preferred candidates con sistently defeated as a result of white majority bloc voting (Gingles, 50–51). The latter two criteria could be met by demonstrating the existence of racial ly polarized voting (Gingles, 56). Gingles was significant for several reasons, three of which will be dis cussed here. First, the Court reinforced its position, traceable from the mid 60’s through White v. Regester and Rogers v. Lodge, that at-large elections are not inherently objectionable. Section 2’s strong medicine would be pre scribed only when at-large elections interacted with other factors to deny electoral opportunity to African-Americans and language minorities. Sec ond, not all members of protected groups would benefit from the Gingles test. Geographically concentrated black and Latino voters would be protect ed from dilutionary electoral schemes, but dispersed minorities would bene-

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fit only if mapmakers stretched the definition of “compact,” as several state legislatures attempted to do during the 1990 round of redistricting. Third, the extension of the Gingles threshold criteria to single-member districting in Growe v. Emison (1993) and Voinovich v. Quilter (1993) combined with the incorporation of Section 2 into Section 5 preclearance proceedings to fuel the controversy surrounding the 1990 round of redistricting. The following section will examine this controversy and its ramifications.
Shaw v. Reno: The Supreme Court takes a right turn
Controversies over voting rights policy flared up powerfully in redis tricting following the 1990 census. In the first round of nationwide redistrict ing since Thornburg v. Gingles, mapmakers faced conflicting imperatives. Legislators were required to draw plans that complied with one person–one vote while not diluting minority voting strength. At the same time, they wanted to ensure that gains in minority representation would not come at the expense of their parties’ incumbents. Attempts to accommodate Section 2’s requirements while pursuing partisan ends produced some of the convoluted maps that drew the ire of many commentators. Against this backdrop, the Supreme Court found itself confronted by a distinctive claim. Plaintiffs challenging the new majority-minority districts recognized that the voting rights case law, as it stood, offered no avenue of attack. Since race-conscious districting did not leave white voters under represented, vote dilution claims raised by whites would carry little weight in court. Instead of challenging the existing vote dilution framework, the new voting rights plaintiffs bypassed that framework by presenting a differ ent argument: that race-conscious districting violates the Equal Protection Clause because it denies voters the right to participate in a color-blind elec toral process. The Rehnquist Court, through a Fourteenth Amendment juris prudence that eschewed the use of “benign” racial classifications in favor of a norm of color-blindness, had already signaled a receptiveness to this stance. The Court’s holding in Shaw v. Reno (1993) recognized this new claim and its subsequent decisions in Miller v. Johnson (1995), Shaw v. Hunt (1996) (Shaw II), and Bush v. Vera (1996) struck down districting plans in Georgia, North Carolina, and Texas on equal protection grounds, thereby vindicating the plaintiffs’ approach. In various ways, the Rehnquist Court’s recognition of representational harms stemming from excessive reliance on race in redistricting opened an economy-size can of worms. Shaw and its progeny introduced conceptual uncertainties and tensions between the Court’s Fourteenth Amendment ju risprudence and its long-settled treatment of Section 2. After describing the

Origins of Contemporary Voting Rights Controversies
51 Court’s extension of its equal protection jurisprudence to voting rights, I will examine some of the problems that this extension has produced. In chapter 4, I will revisit the considerations examined below when I look more closely at judicial performance in redistricting. The Supreme Court’s current approach to redistricting reflects several role reversals and no small measure of irony. Today, cases involving the Voting Rights Act increasingly are brought not by racial and language mi norities seeking relief from dilutionary majoritarian political processes, but by white plaintiffs brandishing the rhetoric of color blindness and raising equal protection claims. Today, it is minority litigants, not white Southern legislators of the recent past, who advocate deference to legislative judg ments concerning redistricting and attribute innovative cartography to non racial factors. But Shaw’s storyline—white plaintiffs arguing that race conscious districting is constitutionally suspect—was not entirely novel. It had antecedents in a case preceding Shaw by fifteen years: United Jewish Organizations of Williamsburgh (UJO) v. Carey (1977). In 1974, New York State submitted to the Justice Department its redis tricting plan for three counties within New York City—Kings (Brooklyn), New York (Manhattan), and Bronx—that were subject to Sections 4 and 5 of the Voting Rights Act.
33 After the attorney general held that certain Kings County districts violated Section 5, the state submitted a new plan that left untouched the number of majority-minority districts, but altered the size of the nonwhite 34 minority populations in those districts. This plan split a com munity of approximately 30,000 Hasidic Jewish voters, who had previously resided in a single assembly (61 percent nonwhite) and single senate (37 percent nonwhite) district, into two assembly and two senate districts, each of which exceeded 65 percent nonwhite population. Members of the Hasidic community brought suit, claiming that the districting plan inflicted two harms resulting in Fourteenth and Fifteenth Amendment violations. First, in order to achieve a racial quota, the state’s plan diluted Hasidic votes by di viding the community into two districts where their votes were likely to be come less effective. Second, the plan allegedly relied exclusively on race in its assignment of voters to districts (UJO, 152–53). As was common when the Burger Court confronted cases involving ra cial classifications, the Court upheld the state’s redistricting plan while fail ing to reach agreement on a majority opinion.
35 No impermissible vote dilution had occurred, wrote Justice White for a three-justice plurality, be cause the districting plan did not leave white voters underrepresented in Brooklyn or statewide. While the state did try to boost nonwhite minority representation, “there was no fencing out of the white population from par-

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ticipation in the political processes of the county, and the plan did not mini mize or unfairly cancel out white voting strength” (UJO, 165). In fact, under the revised plan whites were marginally overrepresented: they represented 65 percent of Kings County’s population and held 70 percent of the county’s assembly seats (UJO, 165–66). Addressing the racial basis behind New York’s action, Justice White’s plurality opinion held that the Constitution neither prohibited all use of race in districting nor limited such uses to remedying past discrimination (UJO, 161). While “the State deliberately used race in a purposeful manner…its plan represented no racial slur or stigma with respect to whites or any other race” (UJO, 165). As a result, the plan, and implicitly Section 5, would be judged not under strict scrutiny, the most stringent standard of equal protec tion review, but under the more lenient rational basis standard. New York’s redistricting plan met the latter standard, said the Court, because it was rea sonably related to a permissible state purpose under the Voting Rights Act: to empower groups that had suffered exclusion from the political arena. Even in the absence of a judicial finding of prior discrimination, the state could act to provide representation for previously excluded blacks (UJO, 161). In language that resurfaced in Shaw v. Reno, Chief Justice Burger’s dis sent focused on the harms allegedly presented by race-conscious districting. Redefining Gomillion to support the view that line drawing “with the sole explicit objective of reaching a predetermined racial result cannot ordinarily be squared with the Constitution,” Burger argued that by allowing race to outweigh other politically salient characteristics, New York violated the Fourteenth Amendment (UJO, 181). Plans that ignored neutral districting principles in the service of proportional racial and ethnic representation, in Burger’s view, worked against the goal of promoting an integrated society or a “racially neutral legislature.” Instead, such racial gerrymandering puts the imprimatur of the State on the concept that race is a proper consideration in the electoral process….The use of a mathematical for mula tends to sustain the existence of ghettos by promoting the notion that political clout is to be gained or maintained by marshaling particular racial, ethnic, or reli gious groups in enclaves. It suggests to the voter that only a candidate of the same race, religion, or ethnic origin can properly represent that voter’s interests, and that such candidate can be elected only from a district with a sufficient minority concen tration. (UJO, 186) The legal and political landscape changed substantially in the interval between UJO and Shaw. As detailed earlier, in 1982 Congress effectively overrode City of Mobile v. Bolden by amending Section 2 of the Voting

Origins of Contemporary Voting Rights Controversies
53 Rights Act to incorporate a “totality of the circumstances” test for establish ing minority vote dilution. In Thornburg v. Gingles, the Court gave greater specificity to the new Section 2 when it established its three-pronged thresh old test for determining when multimember at-large elections impermissibly dilute minority voting strength. Finally, the federal judiciary, and especially the Supreme Court, became more conservative in the decade preceding Shaw. This conservatism manifested itself markedly in the Court’s rulings in cases concerning racial preferences. In contrast to the Warren and Burger Courts, which had sometimes distinguished between benign and invidious racial classifications, 36 the Rehnquist Court deemed all governmental uses of race constitutionally suspect and therefore subject to strict scrutiny, which requires that laws be narrowly tailored to serve a compelling state interest. In City of Richmond v. J.A. Croson (1989), an affirmative action case involv ing legislation intended to benefit minority subcontractors, Justice O’Connor presented themes that have resonated throughout the Rehnquist Court’s holdings on redistricting, and race more broadly. Said O’Connor, Absent searching judicial inquiry into the justification for…race-based measures, there is simply no way of determining what classifications are “benign” or “remedi al” and what classifications are in fact motivated by illegitimate notions of racial in feriority or simple racial politics…. Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility. (Croson, 493) Croson and subsequent holdings addressing racial preferences 37 placed color blindness front and center, yet a color-blindness requirement fits un comfortably with the spirit of the Voting Rights Act. To be sure, the act’s provisions are facially race-neutral, and in the South, both blacks and poor whites benefited from them. Indeed, many of the practices addressed by the Voting Rights Act—poll taxes, literacy tests, the wide discretion granted to biased registration officials—limited black electoral participation not be cause they discriminated facially, but because they were applied in an invid ious manner. But interpreting the Voting Rights Act to require color-blind electoral processes fails to consider the context in which the act emerged. Legislators knew who the intended beneficiaries were, and they knew why drastic measures, especially the preclearance provisions of Sections 4 and 5, were needed to secure the full benefits of suffrage. These provisions did not refer directly to protecting black voters, but the fact that coverage was tai lored to respond to peculiarly Southern conditions indicated that the act’s drafters had black voters in mind.
38 In other words, key provisions of the

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Voting Rights Act contained an implicit color-consciousness. When the Su preme Court shifted toward a norm of defining equal protection in terms of color blindness, then, it introduced the possibility that voting rights case law, and perhaps the Voting Rights Act itself, would be brought into conflict with the Fourteenth Amendment. In Shaw, the Court did not impose complete color-blindness on congres sional districting, but it hinted at a shift in that direction. Shaw’s storyline featured a volatile mix of racial politics, partisan maneuvering, and incum bency protection (Kousser 1999). After gaining a twelfth House seat follow ing the 1990 census, North Carolina, a state which had not sent a black representative to Congress in the twentieth century, drew a redistricting plan that included one majority-black district. In response to the attorney gen eral’s objection, 39 the state submitted a revised plan that included a second majority-black district. Drawing the second district proved a complicated task for two reasons. First, while North Carolina had a voting-age black population of 20 percent, that population was geographically dispersed, as is typical in much of the South. Because only five of the state’s one hundred counties possessed black majorities (Shaw, 634), the compactness prong of the Gingles test could be passed only by violating traditional notions of compactness. Second, North Carolina’s General Assembly had interests oth er than furthering black representation. Democrats controlled the assembly after the 1990 elections, and they were determined not to let black represen tation come at the expense of white Democratic incumbents, who were likely to suffer from the shift of reliably Democratic black voters to the new major ity-black districts.
40 These considerations led the legislature to produce the map that launched a thousand law review articles and offered an inviting target for critics of race-conscious redistricting. District 1, centered in the northeast corner of the state but reaching southward to the South Carolina border, was likened to a “Rorschach ink-blot test” and “a bug splattered on a windshield” (Shaw, 635).
41 District 12 drew even greater fire: it traced Interstate 85 for much of its 160-mile length, maintained contiguity in only the most tech nical sense, and split electoral units down to the precinct level (Shaw, 635– 36). Whether measured in terms of geographical dispersion or irregularity of district borders, District 12 ranked among the least compact congressional districts (Pildes and Niemi 1993, 565). Five Durham County residents, two of whom lived in the new District 12, claimed in federal district court that the new redistricting plan represented a racial gerrymander that violated the Fourteenth Amendment. They also claimed that either the Justice Depart ment misconstrued the Voting Rights Act, or the act itself was unconstitu-

Origins of Contemporary Voting Rights Controversies
55 tional. Relying on UJO, the court dismissed the plaintiffs’ complaints and upheld both the general use of race-conscious redistricting and North Caro lina’s redistricting plan in particular (Shaw v. Barr [1992]). Upon appeal to the Supreme Court, the plaintiffs dropped their initial claim that all race-conscious redistricting is unconstitutional, 42 and instead argued that intentionally segregating voters according to race violated their constitutional right to participate in a color-blind electoral process (Shaw, 641–42, citing Brief for Appellants 31–32). As O’Connor, the majority opin ion’s author, put it, What appellants object to is redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification. (Shaw, 642) The Supreme Court temporarily passed on deciding whether an imper missible racial gerrymander had occurred, but it held, by a 5–4 margin, that the plaintiffs had standing to sue and had presented a justiciable claim under the Fourteenth Amendment. Districting, said the majority, becomes subject to strict scrutiny when it produces results that can be plausibly explained only as an attempt to segregate voters on racial grounds (Shaw, 641, 646– 47). The Court tried to avoid promulgating a purely aesthetic standard for identifying racial gerrymanders, but it did single out “bizarre” or “extremely irregular” district shapes as highly suggestive, if not always determinative, of impermissible gerrymandering (Shaw, 644, 646). In Justice O’Connor’s words, “reapportionment is one area in which appearances do matter” (Shaw, 646). At the same time, the majority opinion stated that a reliance on traditional districting practices, while neither necessary nor sufficient to de feat an equal protection claim, could help to rebut charges of racial gerry mandering (Shaw, 646). By implication, majority-black districts that are compact and reflective of common interests would be more likely to pass constitutional muster than districts resembling North Carolina’s District 12. Following the appellants’ lead, the majority distinguished Shaw from the vote dilution cases on the ground that the practices at issue in the latter cas es—at-large elections in which multimember districting interacts with other procedural mechanisms—do not classify voters on the basis of race (Shaw, 649). As a result, measures to combat vote dilution do not present the same potential harms that racial gerrymandering does. While the harms identified in Shaw are less tangible than the harms addressed by the Voting Rights Act, to the Court they are no less real or consequential. Racial gerrymandering, said the majority, sends two deleterious messages.

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First, racial gerrymandering may perpetuate stereotypes by “rein forc[ing] the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls” (Shaw, 646). Members of a racial group might share political interests and support the same candidates, but mapmakers must not assume that race defines a community of interest. Strict scrutiny becomes necessary to “smoke out illegitimate uses of race” (Croson, 493) and to de termine which classifications are truly “benign.” Second, racial gerrymandering might adversely affect the quality of leg islative representation. Creating majority-minority districts that take liberties with traditional districting principles might signal officials elected from those districts that they represent a certain racial group, rather than the entire district (Shaw, 648). Rather than reducing racial tension and separatist pres sures, racial gerrymandering might intensify both by encouraging citizens and their representatives to perceive their political interests in racialized terms.
43 “Racial gerrymandering, even for remedial purposes,” wrote O’Connor, “may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire” (Shaw, 657). Much confusion arose over Shaw’s meaning. Was the Court signaling a willingness to entertain an attack on all race-conscious districting? Or was the Court merely delineating the outer limits of acceptable districting prac tices? The latter interpretation receives some support from the majority’s acknowledgment that race, like ethnicity more broadly conceived, is com monly considered in districting (Shaw, 646). In addition, the majority’s em phasis on District 12’s shape suggested that the North Carolina plan presented an example of “too much is too much,” instead of “any is too much.” Finally, Justice O’Connor later provided evidence that she did not intend the Shaw standard to be read too broadly. In her concurrence in Miller v. Johnson (1995, 2496), O’Connor wrote that states’ customary adherence to traditional districting principles meant that applying Miller’s standard would not “throw into doubt the vast majority of the Nation’s 435 congres sional districts,” even when race is factored into redistricting decisions. And in Bush v. Vera, O’Connor took the unusual step of writing a separate opin ion, accompanying the plurality opinion that she herself penned, stating that Section 2 is compatible with the Shaw line of cases. Much of the majority’s rhetoric, however, supports the former interpre tation. Even if one accepts the majority’s conception of the harms resulting

Origins of Contemporary Voting Rights Controversies
57 from excessive reliance on race in redistricting, it is unclear why district ap pearance should be relevant. Each of these harms could be produced by compact majority-minority districts just as easily as by more “bizarre” dis tricts (Briffault 1995, 45). A white voter in a compact majority-minority dis trict is no less likely to be concerned about a minority representative’s willingness to consider her interests simply because the district has an aes thetically pleasing shape. More significantly, the majority evokes the most vivid images of inter-ethnic strife when it uses such phrases as “balkaniza tion” and “political apartheid” to describe the oddly shaped districts at issue in Shaw. Coupled with the Court’s treatment of affirmative action, this rhet oric suggests a visceral aversion to any race-consciousness in redistricting. The Supreme Court’s first application of the Shaw standard, in Miller v. Johnson, addressed Shaw’s ambiguity concerning shape, only to introduce a new standard with wider-ranging implications. After the 1990 census, Geor gia’s General Assembly passed a congressional redistricting plan increasing the number of majority-black districts from one (out of ten) to two (out of twelve). The Justice Department twice denied preclearance because Georgia did not satisfactorily defend its decision not to create a third majority-black district. The legislature then enacted and received preclearance for a plan with three majority-black districts, one of which, the Eleventh, became the featured attraction in Miller. This district connected concentrated black pop ulations in three urban areas (Atlanta, Augusta, and Savannah) by stretching hundreds of miles across sparsely populated rural areas. Like the North Car olina district challenged in Shaw, it split counties (eight) and municipalities (five), and it maintained contiguity only through the use of narrow corridors (Johnson v. Miller [1994], 1367, 1389). A federal district court, relying on Shaw, struck down District 11. Since race, according to the lower court, was the “overriding and predominant force in the districting determination” (Johnson, 1375), the Georgia plan became subject to strict scrutiny. The dis trict court rejected Georgia’s contention that the pursuit of racial proportion ality in its congressional delegation qualified as a compelling state interest. Even if one assumed that compliance with the Voting Rights Act constitutes a compelling interest, said the court, the Georgia plan was not narrowly tai lored to serve that interest, because in this instance the act did not require the creation of three majority-black districts. With its holding in Miller, the Court refined and redefined the standard it set forth in Shaw. Most notably, the Court situated Shaw’s discussion of district shape within a broader concern with districting that employed race as the “predominant factor.” Shape matters

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not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evi dence that race for its own sake, and not other districting principles, was the legisla ture’s dominant and controlling rationale in drawing its district lines…. [Therefore,] parties may rely on evidence other than bizarreness to establish race-based district ing.” (Miller, 2486) The Court’s new standard removed much of the “I know it when I see it” 44 character of Shaw’s treatment of district shape, but its attempt to isolate race from other factors affecting redistricting introduced new complications. In particular, the “predominant factor” standard threatened to be judicially unmanageable. Bizarreness of shape does not have any independent federal constitutional or statutory standing, but a quantitative compactness require ment could be imposed by Congress and enforced manageably by the courts. How, in contrast, might a court determine whether race played a greater role in a districting plan than such factors as incumbency protection and pursuit of partisan advantage?
45 To draw an analogy to Reynolds v. Sims, bizarreness could be addressed by a quantitative standard akin to one person–one vote, while the Miller standard resembles the Reynolds Court’s statements regard ing the right to “fair and effective representation.” 46 Furthermore, Miller’s rationale left open the possibility of conflict be tween the Voting Rights Act and the Fourteenth Amendment. Shaw’s treat ment of shape suggested that the Court would intervene only in the most blatant instances of racial gerrymandering. Miller, however, potentially threatened all majority-minority districts, because all such districts could plausibly be viewed as resulting from a focus on race. To be sure, strict scru tiny does not automatically doom a law or redistricting plan.
47 But the Court has not yet identified an interest that unequivocally qualifies as compelling. In Miller, it rejected proportionality as a potentially compelling interest, and in Shaw II and Vera it assumed for the purpose of argument, but did not hold, that compliance with Section 2 qualifies as compelling. It did affirm a lower court’s holding that compliance with Section 2 is a compelling inter est, but it did so in a one-sentence summary affirmation of a plan drawn by a three-judge district court.
48 The Court was spared from ruling squarely on Section 2’s constitutionality by the fact that Shaw and its progeny featured relatively non-compact districts. What will happen when more compact ma jority-minority districts are challenged remains unclear.
49 In the term following Miller, the Court did little to identify the cutpoint separating permissible and impermissible race-conscious districting. Relying on the “predominant factor” standard, the Court struck down a Texas con gressional districting plan (Bush v. Vera) and the North Carolina plan initial-

Origins of Contemporary Voting Rights Controversies
59 ly presented in the first Shaw decision (Shaw v. Hunt). These cases were noteworthy for the manner in which the majority bloc weighed race against other factors affecting districting. The dissenters continued to question the premises underlying Shaw (1997, 918–25), but their dissents focused on how the states’ plans reflected the predominance of such non-racial factors as preserving communities of interest and protecting incumbents, as well as a desire to comply with the Voting Rights Act. Bizarre shape, they claimed, served to prove that race did not predominate; one who wanted to draw dis tricts for purely racial reasons could have drawn majority-minority districts that were much more compact than the challenged districts.
50 The Shaw II majority and Vera plurality, however, held that the shape of the majority-minority districts, coupled with legislators’ descriptions of their intent to create majority-minority districts, demonstrated that interests such as incumbency protection and preserving communities of interest had been subordinated to race. For example, Texas defended its District 30 as an at tempt to join communities of interest in a single district and to protect in cumbents. The Court rejected the “communities of interest” argument because Texas, when it redistricted, had detailed racial data at its disposal but had neither compiled nor referred to any data concerning communities of interest. The incumbency protection characteristic of the garden-variety po litical gerrymander normally passes constitutional muster, said the plurality opinion, but partisan political motivations cannot immunize a districting plan from a Miller challenge when “race is used as a proxy for political characteristics” (Vera, 968). In other words, legislators may not readily as sume that racial identity is a suitable locus around which to define a com munity of interest, nor may they use race as a shorthand for party identification. The Vera plurality did state that a district that is “reasonably compact and regular, taking into account traditional districting principles and traditional boundaries, may pass strict scrutiny” (977, emphasis in origi nal), but until the Court has occasion to pass judgment on such a district, the eventual scope of Miller will remain an open question.
51
The political thicket revisited
Both the vote dilution cases and the racial gerrymandering cases have presented difficulties that continue to bedevil federal courts. Some of these questions reflect the limitations of the Rehnquist Court’s approach to redis tricting and the role race plays in it. But others reflect the policy-making lim itations of courts themselves. The following two chapters will analyze judicial policy-making capabilities and limits in greater detail, with special attention to how they enter into redistricting controversies. In the meantime,

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it will be useful to examine some of the specific tensions and problems pro duced by, or immanent in, the Court’s redistricting holdings. My primary purpose here is not to critique the Burger and Rehnquist Courts’ perfor mance, but instead to identify flaws that are symptomatic of larger issues surrounding judicial policy-making capacity in redistricting. I will focus on three areas of concern: operationalizing standards, establishing appropriate remedies, and characterizing the harms alleged by the plaintiffs and recog nized by the Court in Shaw.
Operationalizing standards
Defining vote dilution. Chandler Davidson (1992, 24) defines minority vote dilution as “a process whereby election laws or practices, either singly or in concert, combine with systematic bloc voting among an identifiable majority group to diminish or cancel the voting strength of at least one minority group.” But how does this definition translate into the specifics of Section 2 enforcement? Many of the judiciary’s problems with developing enforce ment mechanisms for Section 2 have resulted from vagueness in the Voting Rights Act itself. Ambiguity in statutory language results from any number of desires: to enable passage of potentially controversial legislation, to dele gate the details of enforcement to other bodies more capable of micro management, and to allow the law to adapt to changing circumstances while avoiding under-inclusiveness. In the case of Section 2, an additional consid eration holds special significance: an ambivalence concerning the role of race in American politics. This ambivalence permeates Section 2 and com plicates its implementation, especially insofar as courts have inherited re sponsibility for enforcing Section 2. Consider how the 1982 amendments to the Voting Rights Act evolved. Under the amended Section 2, plaintiffs could point to the “totality of the circumstances” to prove that the local political process had denied or abridged one’s right “to participate in the political process and to elect rep resentatives of…choice.” As described earlier, the “totality of the circum stances” standard, lifted from White v. Regester and Zimmer v. McKeithen, presented a grab bag of criteria (the Senate Report factors) from which plaintiffs and judges could choose, depending on which factors were most salient in a given political milieu. The Senate Report factors themselves were not inadvertently left behind by inattentive legislators. Rather, their inclusion was intended to guide the balancing inherent in a “totality of the circumstances” test while providing ample judicial discretion to enforce the act. The need for gap-filling arose in Section 2(b)’s last sentence:

Origins of Contemporary Voting Rights Controversies
61 The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered; Provid- ed, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. (emphasis in original) This passage presents a tension that runs throughout Section 2 enforce ment. Determining whether vote dilution has occurred requires one first to establish a baseline against which to measure fairness. As Justice Antonin Scalia asked during oral argument in Chisom v. Roemer (1991), “You don’t know what watered beer is unless you know what beer is, right?” (Issa charoff 1995a, 881).
52 The clause preceding the semicolon, with its focus on minority candidates’ success, 53 suggests proportionality as an available, and arguably intuitive (King, Bruce, and Gelman 1995, 92), baseline standard. In this light, proportionality could be viewed as a focal point, much like a 50– 50 split in a “divide the dollar” game (Schelling 1960, 67–74). The clause following the semicolon, however, prevents courts from relying exclusively on proportionality as a determinant of racial fairness. Indeed, a longstanding critique of voting rights enforcement centers around the claim that federal courts, notably the District Court for the District of Columbia, have made proportionality the de facto standard for determining vote dilution (Thernstrom 1987; Ti. O’Rourke 1992; Butler 1996). Even if all observers were to agree that proportionality represents an ap propriate benchmark, practical problems would still hinder efforts to define a racially fair electoral process in terms of proportionality. Proportionality will not normally result from single-member districting systems, which pro vide a substantial “winner’s bonus” to the majority party (Rae 1967, 26–39). Alternatively, if proportionality cannot be achieved, one could seek to mini mize the impact of the winner’s bonus. Partisan symmetry—if Democrats win x percent of the vote and y>x percent of the seats, then Republicans should be able to win y percent of the seats with x percent of the vote—has become a commonly utilized standard of partisan fairness, and one could conceive of racial symmetry in analogous terms (Cavanaugh 1995). But ra cial symmetry relies on an unlikely counterfactual: that, within a given redis tricting period, the minority contingent could gain the current majority’s vote shares (King, Bruce. and Gelman 1995, 94). Ultimately, single-member plurality elections are designed to serve purposes other than attaining pro portionality; these include encouraging consensus-based politics and ena bling the formation of a governing majority (Duverger 1984). Demanding proportionality from such systems might simply be asking too much of them.

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Applying Thornburg v. Gingles. With Thornburg v. Gingles, the Supreme Court attempted to respond to conflicting lower court readings of Section 2. While Gingles limited the range of interpretations of Section 2, it left unre solved a variety of questions concerning operationalization. To begin with, the Court was unclear as to how the Gingles test fit in with Section 2’s “to tality of the circumstances” test. Justice Brennan’s opinion held that the three prongs of the Gingles test represented necessary conditions for proving vote dilution in multimember districting contexts, but it did not rule on whether these conditions were also sufficient. The opinion also failed to specify whether lower courts should apply the Gingles test in conjunction with, or instead of, the Senate Report factors. These issues were significant because they affected potential litigants’ strategies; a more stringent test for dilution might have deterred potential litigants from investing scarce time and resources in marshaling the historical record and data analysis needed to present a credible Section 2 challenge. Lower courts took a variety of posi tions on these issues. Some held the Gingles criteria to be sufficient as well as necessary conditions, 54 while other courts treated the Gingles factors as a precursor to a broader examination of the totality of circumstances affecting minority electoral strength.
55 The Supreme Court eventually clarified the matter in Johnson v. DeGrandy (1994), in which it reiterated that the three prongs of the Gingles test represented threshold criteria. The Gingles Court also left undefined the key components of the three prong Gingles test. Each component will be discussed in turn.
When is a group “sufficiently large and geographically compact” to
elect? Under Gingles, a group must be large enough to be capable of consti tuting a majority in a single-member district. But one could argue that cer tain circumstances can make this threshold either too high or too low. For example, nonpartisan elections for local offices often feature more than two candidates running for each seat. In the absence of a majority vote require ment, a candidate could win with less than a majority. Under such condi tions, the first Gingles prong could preclude Section 2 challenges from groups that are too small to form a local majority, but large enough to elect candidates of choice in a fairly drawn single-member district. Alternatively, one could argue that districts containing supermajorities of minorities are needed to compensate for low minority registration and turnout. In this view, epitomized by the Justice Department’s informal “65 percent rule,” majority minority districts that do not account for lower registration and turnout run the risk that a minority group will remain unable to elect candidates of choice despite its constituting a local majority. Should plaintiffs therefore be

Origins of Contemporary Voting Rights Controversies
63 required to demonstrate at the liability stage that supermajority-minority dis tricts can be drawn? As for compactness, which will be discussed in greater detail in chapter 6, Gingles offered no guidelines for developing manageable standards. This ambiguity most likely stemmed from a reluctance to impose an objective standard for compactness, when neither the Constitution nor the Voting Rights Act requires districts to be compact. Federal courts have failed not only to agree on a quantitative measure of compactness, but also to agree on whether compactness should be defined in precise mathematical terms or in a more functional, fact- and context-specific manner.
56 In cases following Gingles but preceding Shaw, lower courts implicitly took the latter route by consistently rejecting defendants’ shape-based objections to plaintiffs’ pro posed remedial districts (Grofman, Handley, and Niemi 1992, 64).
57 However, Shaw and its progeny, especially Shaw II and Vera, have made compactness a central consideration at each stage of the judicial inquiry into racial gerrymandering. When confronted with a Shaw claim, the judge first infers from the challenged district’s compactness, or lack thereof, whether the district’s composition reflects the predominant influence of race. If it does, she then asks whether a compelling state interest exists. If the jurisdic tion claims that compliance with Section 2 constitutes a compelling state interest, compactness reenters via the first Gingles prong. The presence of a compact minority community, coupled with racial bloc voting and a “totality of the circumstances” pointing toward prevalent unequal electoral opportuni ty, might qualify as a compelling state interest for race-based districting.
58 Finally, as part of the narrow tailoring inquiry required by strict scrutiny, the judge must ask whether the district is “reasonably” compact (Vera, 4460), a standard falling somewhere between “the most compact” and “not at all compact.” In short, the fact that compactness does triple duty under Shaw/Miller makes operationalizing compactness all the more crucial, yet the Supreme Court has taken no steps in that direction. What is polarized voting? Judicial inquiries into racial polarization have been part of the voting rights landscape since White v. Regester, but such inquiries became especially consequential after Gingles. For while the Sen ate Report factors included polarized voting, the second and third prongs of the Gingles test made polarization a threshold criterion for establishing a Section 2 violation. In Gingles, the Court explained why the presence of po larization was significant, but it left open two crucial questions. First, what degree of bloc voting must exist for a jurisdiction to be considered racially polarized? Second, by what method should bloc voting be ascertained?

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Judicial determinations concerning polarization have been an ad hoc en terprise, as one might expect when the task of defining legally significant bloc voting has been left to the discretion of federal district courts. Polarized voting is included among the Senate Report factors, but Congress provided no bright-line definition to guide lower courts. Nor did the Supreme Court in Gingles, even though that case elevated polarization to a threshold criterion; instead, it expressed a preference for district-specific inquiries (Gingles, 55– 56). What complicated the kind of fact-specific inquiries demanded by Sec tion 2, and later by Gingles, was an absence of data directly addressing the question of polarization. Because jurisdictions do not keep registration data broken down by race, and because witnesses in discovery proceedings can not be compelled to disclose how they voted, inquiries into bloc voting re quire indirect measurement techniques. Two different procedures have underpinned voting rights plaintiffs’ Section 2 claims and, with few excep tions, have come to be relied upon by federal trial courts. The first of these methods is homogeneous precinct analysis, or extreme case analysis. This method compares support for minority candidates across precincts that are approximately all-white or all-minority. One can compen sate for the lack of complete homogeneity of most precincts by treating elec tion outcomes as upper and lower bounds of support for minority candidates. In predominantly black precincts, for example, one can treat election out comes as a lower bound, on the assumption that a 100 percent black precinct would show stronger support for a minority candidate than would a 90 per cent black precinct. Similarly, outcomes in predominantly white precincts would represent an upper bound on white support for the minority candidate (Grofman, Handley, and Niemi 1992, 85). While homogeneous precinct analysis has the advantage of simplicity and accessibility to trial judges, its utility as a stand-alone technique is limited because it discards substantial amounts of data from more heterogeneous precincts. Should an assumption crucial to this method—that minority voters living in predominantly minori ty precincts vote similarly to minority voters in racially mixed precincts— fail to hold, homogeneous precinct analysis would overstate the level of po larization, as the groups of voters most likely to cross racial lines would not be considered. A second method, bivariate ecological regression, received the support of a four-justice plurality in Gingles and since then has become the most prevalent method of estimating racial bloc voting. The variant of ecological regression used in Section 2 cases, also known as the double-equation meth od or simply double regression (Lichtman 1991; Grofman and Migalski 1988), contains two steps. Starting with precinct-level data on (1) voting-age

Origins of Contemporary Voting Rights Controversies
65 population by race, and (2) the vote shares received by the white candidate and the minority candidate, 59 one estimates the proportion of white registered voters supporting each candidate and the proportion of minority registered voters supporting each candidate. These estimates are then used to ascertain support for candidates in terms of actual voters, as opposed to registrants. This second step leads to the variables crucial to a Section 2 inquiry: the ex tent to which whites vote for whites, and minorities vote for minorities (Grofman, Handley, and Niemi 1992, 85–88). In Gingles (1986, 63), Justice Brennan justified a reliance on bivariate ecological regression by stating, “It is the difference between the choices made by black and white voters and not the reasons for the differences, that leads to blacks having less opportunity to elect their candidates of choice.” But while courts have generally accepted bivariate ecological regression, social scientists have raised several methodological questions about its use. One such question concerns a reliance on bivariate, as opposed to multivari ate, regression. According to some critics, 60 models featuring race as the lone independent variable tend to overestimate polarization by failing to consider non-racial factors, especially partisanship, that might explain high rates of same-race voting. As Judge Patrick Higginbotham of the Fifth Circuit put it, “Section 2 is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats” (League of United Latin American Citizens v. Clements [1993]).
61 A four-justice plurality in Gingles 62 declined to require multivariate regression on the grounds that requiring claimants to show a causal relationship, and not just a correlation, between race and voting behavior would reintroduce an intent-based standard, contra ry to what Congress had intended when it amended Section 2. Furthermore, explaining polarized voting in terms of socioeconomic status creates a ten sion in which depressed status both supports a Section 2 claim, in that it can represent a lingering effect of past discrimination, and undercuts that claim by erecting prohibitively high barriers to vote dilution claimants (Gingles, 67). The latter effect results from the likelihood of multicollinearity between race and other explanatory variables, such as party identification and socio economic status, that can lead to an underestimation of race’s influence on voting behavior. Even if one accepts the justification for bivariate regression, reliance on the procedure presents other questions that courts have not considered. Does double regression produce estimates that, under certain conditions, are sys tematically biased toward findings of greater polarization (Ansolabehere and Rivers 1994)? Does double regression fall prey to the ecological fallacy, which results from the attempt to make inferences about individual behavior

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from aggregate-level data (Bullock 1991; Wildgen 1993)?
63 To date, trial court judges, who generally lack training in statistical methods, have largely opted to steer clear of these thorny methodological debates and to defer to the Supreme Court’s acceptance of bivariate ecological regression in Gin- gles. Why do these considerations matter so much? Aside from the cliché about the devil being in the details, the best answer is that the Shaw line of cases, coupled with the extension of the Gingles test to single-member dis tricting in Growe v. Emison (1993), has given renewed prominence to the particulars of Section 2 enforcement. If the Court ultimately holds, instead of assuming arguendo, that compliance with Section 2 constitutes a compel ling state interest, courts will have to determine whether districts are narrow ly tailored toward that interest. Put differently, if the Court plans to continue to stress Justice O’Connor’s distinction between “what the [Voting Rights Act] permits and what it requires” (Shaw, 653), it will need to develop some tools for assessing the act’s requirements. Shaw/Miller and “wrongful districting.” Despite its subsequent disclaimer in Miller, the Supreme Court in Shaw gave the impression that district shape by itself could subject a districting plan to the strict scrutiny that Croson demands of government-mandated racial classifications (Butler 1996, 342). The majority opinion’s repeated references to North Carolina District 12’s shape, coupled with its emphasis on Gomillion, support this position, epito mized by O’Connor’s statement that “reapportionment is one area in which appearances do matter” (Shaw, 646). Shaw left unanswered the question of how “neater” districts might fare, but it implied that more compact districts would stand a better chance of withstanding judicial scrutiny than would districts resembling District 12. Shaw, however, provided no metric by which to measure compactness. Nor did it discuss the merits of competing definitions. Instead, the Court relied on eyeball inspection, an intuitive but potentially misleading technique. De-emphasizing the importance of aesthetics, Miller held that strict scru tiny would be triggered whenever race is the “predominant factor” in dis tricting. In so doing, the Court replaced an “I know it when I see it” standard, which could be made manageable by imposing a compactness re quirement, with an “I know it when I sense it” standard, which offers few clues for judicial application. It is unclear how lower courts will be able to identify a “predominant factor” among the many considerations that enter into redistricting, a process typified by horse-trading and gamesmanship. As Samuel Issacharoff (1995b, 57) notes, the problem of determining a thresh old level of causation worsens when one considers that “the Court’s ‘pre-

Origins of Contemporary Voting Rights Controversies
67 dominant factor’ standard has no direct antecedents in either constitutional law or, perhaps more relevant, in the common law of causation.” Moreover, the available analogues to the predominant factor standard prove unworkable in the redistricting context. Imposing a “but-for” standard of causation casts too broad a net, for it requires only that had certain conduct not occurred, a different outcome would have resulted. Since any consideration of race in redistricting produces an outcome that would not have occurred absent such consideration, this standard either dooms any attempt to protect minorities’ electoral strength, or requires an ad hoc assessment of the causal link be tween conduct and outcome. Alternatively, imposing a more stringent “sole proximate cause” standard of causation would be meaningless because redis tricting can never be characterized accurately by pointing to one causal fac tor. In short, exporting “tort-like conceptions of causation” (Issacharoff 1995b, 57–58) leaves the term “predominant factor” indeterminate, and as a result fails to constrain the judicial inquiry into redistricting processes. The most common answer offered by supporters of Shaw/Miller to Mil- ler’s central question—How much use of race is too much?—focuses on the extent to which racial groups are treated like other politically salient groups. Race, in this view, can most plausibly be viewed as predominant when a dis tricting plan ignores natural and subdivisional boundaries, differs noticeably from the previous plan, and mirrors minority population distributions (Butler 1996, 344). But this approach ignores race-neutral factors that matter to line drawers and can explain a particular map at least as well as race, if not bet ter. These factors include maintaining communities of interest, drawing dis tricts that are compact and in compliance with one person–one vote, protecting incumbents, and pursuing partisan advantage. That legislators could, and often do, favor a districting plan for any number of reasons com plicates efforts to single out one factor as “predominant.” To summarize, the Court’s racial gerrymandering holdings counterpose a “natural” use of race in districting (drawing compact districts reflecting communities of interest not based exclusively on race) against “unnatural” uses (e.g., drawing the district challenged in Shaw). The Court, however, has yet to offer a compelling justification for insisting on one use over the other or to provide sufficient guidance to the lower courts that will have to apply the Miller standard.
Establishing appropriate remedies
Are majority-minority districts necessary to ensure that minorities pro tected under Section 2 have equal opportunity to elect representatives of their choice? In jurisdictions where racial polarization is prevalent, substan-

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tial evidence points to an affirmative answer (Davidson and Grofman 1994). With few exceptions, majority-white districts in the South do not elect black representatives.
64 The first prong of the Gingles test, which requires that a group claiming dilution be sufficiently large and compact to form a majority within a single-member district, reflects this consideration. The second and third prongs, which ask whether a politically cohesive minority group con sistently gets outvoted by a politically cohesive majority bloc, constrain the use of an alternative remedy: influence districts. In such districts, a minority group serves as a swing constituency too small to ensure victory for its most preferred candidate, but large enough to encourage candidates to compete for its support. According to proponents of this remedy, minority interests are served best not by concentrating minority voters in a few districts, but by scattering sizable pluralities across a larger number of districts.
65 The Gin- gles test allows influence districts in most cases while precluding them in jurisdictions characterized by racial bloc voting that discourages white can didates from appealing to minority swing constituencies. Several circumstances have rejuvenated the debate over remedies for vote dilution. Section 2’s requirements became especially important during the 1990 round of redistricting, which was the first nationwide redistricting effort since Gingles. As political parties gained a clearer perception of how their electoral prospects would be affected by attempts to accommodate mi nority interests, they increasingly took already-contentious battles over re districting into both federal and state courts. Fueling this trend was the dissolution of the Democratic Party’s monopoly on political power in the South at the state and local levels. Before the 1980’s, Voting Rights Act cas es generally arose within a context in which race was the most salient cleav age; after Gingles, partisan competition interacted with racial divides to transform the two-way competition between blacks and whites into a three way struggle featuring black Democrats, white Democrats, and Republicans. In addition, demographic changes have produced new categories of vot ing rights claimants, thereby challenging key assumptions underpinning the Voting Rights Act. Though its language was race-neutral, the original act was drawn primarily to benefit African-Americans. Today, and increasingly in the future, the act must address the distinct concerns of language minori ties, who were granted protected status by Congress in 1975. In particular, within the past two decades Latino and Asian-American populations have grown substantially in both raw numbers and political visibility, and this trend shows no signs of abating. Transforming voting rights law and policy to address these trends requires an approach that can account for differences in citizenship rates, residential patterns, and intra-group cohesion. Yet the

Origins of Contemporary Voting Rights Controversies
69 act still reflects the assumption that voting rights controversies feature bipo lar, black-white competition, even though jurisdictions in California, Flori da, Texas, and elsewhere contain sizable populations of both blacks and language minorities.
66 Finally, the extension of the Gingles test to single-member districting in Growe v. Emison has complicated remedial issues further. Challenges to multimember districts presented few difficulties at the remedial stage, since courts were choosing between dilutionary at-large elections and some plan featuring single-member districting. So long as a legislature-drawn plan remedied the statutory violation without violating one person–one vote or state law, the legislature retained discretion over its choice of single-member districting plans. Once single-member districting plans could be challenged under Section 2, however, judges in effect were asked to choose between competing plans, each one representing its designers’ partisan aims. One example of such a “beauty contest” (Grofman 1993b, 1254) lawsuit occurred in Ohio. After the 1990 census, the state legislative apportionment board drew up and adopted a plan featuring several majority-black districts. The three Republicans on the board supported the plan, while the two Dem ocrats voted against it. The defeated legislators, joined by various Democrat ic electors and legislators, then challenged the plan on the grounds that the legislature overconcentrated black voters in majority-black districts, thereby diluting black electoral strength in a state where prevalent crossover voting enabled blacks to elect candidates of their choice from majority-white dis tricts. The Court, unanimously overruling a federal district court, held in Voinovich v. Quilter (1993) that, absent a Section 2 violation, the choice be tween drawing majority-minority districts or influence districts remains with the legislature. Because black Democrats in Ohio could reasonably be treated as fungi ble with white Democrats, the Court allowed normal political processes to determine how black voters would be accommodated. Where minority and white voters have different political interests, as is more common in covered jurisdictions, courts will face more controversial choices. Advances in redis tricting software and accessibility to precinct-level census data have democ ratized the battle over redistricting. As a result, courts ruling on the validity of a single-member districting plan will be forced to select from competing remedial alternatives, each of which benefits certain combatants, and all of which are touted as beneficial to minorities. Much like the methodological concerns discussed earlier, these issues do not involve purely technical details for which “objective” answers exist. Ra ther, they present hotly contested considerations: the scope of raw partisan

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politics in redistricting; competing definitions of electoral influence; the ex tent to which case law should recognize group-based claims vis-a-vis indi vidualized claims; and the extent to which conflicting empirical and normative claims concerning the role of race in American politics can be reconciled. Moreover, these various inquiries are interdependent, in the sense that one’s definition of racial polarization will influence one’s views concerning remedies for vote dilution, as well as one’s definition of vote dilution.
Characterizing harms
What kind of harms allegedly result from race-based redistricting? Is the legal recognition of these harms consistent with the manner in which the American legal system, and the Supreme Court more specifically, treats oth er kinds of harm? Such questions become thorny in the wrongful districting cases because the harms alleged by Shaw claimants are less tangible than the harms claimed by other Fourteenth Amendment plaintiffs. White plaintiffs challenging affirmative action programs or college admissions policies, for example, can plausibly claim that they were denied a tangible benefit be cause of their race. Making an analogous claim is more difficult for wrong ful districting plaintiffs, since the benefits resulting from race-neutral districting are harder to define concretely. The Court’s conception of harm in Shaw and its progeny can best be characterized in terms of “expressive harms,” or “violations of public understandings and norms” (Pildes and Niemi 1993, 507). In redistricting, expressive harms result from the message government sends when it draws district lines based on an excessive reliance on race (Pildes and Niemi 1993, 493–516). From this perspective, drawing contorted districts to benefit specified groups undermines “constitutionally written public understandings about the appropriate structure of values in some are na of public action,” thereby making government appear less legitimate to its citizens (507). Such actions cause injury by reducing multiple values typical ly present in territorial redistricting to a single value: race (500–01). The Shaw majority obliquely recognized expressive harms in two ways: (1) by raising the specter of “balkanization” and “political apartheid,” and (2) by hypothesizing about inadequate representation by officials elected from ma jority-minority districts. Arguments regarding stigmatic harms are hardly new; they have appeared in such landmark cases as Plessy v. Ferguson (1896) and Brown v. Board of Education. But the Brown plaintiffs were able to present a plausible story linking segregated public education and feelings of inferiority among blacks. The remainder of this section will examine the

Origins of Contemporary Voting Rights Controversies
71 plausibility of the story underpinning the plaintiffs’ position in wrongful districting cases. According to the Shaw majority, racial classifications in general “threat en to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility” (Shaw, 642). In particular, districting in which residents share little other than race “reinforces the perception that members of the same racial group—regardless of their age, education, economic sta tus, or the community in which they live—think alike, share the same politi cal interests, and will prefer the same candidates at the polls” (Shaw, 646). This view of stigma, however, raises a number of concerns. For one, while Shaw and subsequent cases use race-neutral language when discussing stig matic harms, their focus on majority-black districts suggests a belief that irregularly shaped majority-black districts primarily stigmatize black voters. Yet these cases were launched not by the allegedly stigmatized group, but by white citizens who considered themselves adversely affected by a redistrict ing plan. A second concern lies in the Court’s belief that certain uses of race in districting perpetuate stereotypes concerning minority political behavior. The Shaw majority fails to account for the fact that in racially polarized communities, voters by definition split along racial lines. That skin color serves as a proxy for political interest under such conditions is not a stigma bearing stereotype; it is an empirically verifiable observation. The Supreme Court may be justified in cautioning mapmakers against a reliance on casual stereotyping, but it has not made clear what evidence would persuade it that something more than casual stereotyping had entered into race-conscious districting. Race-conscious districting, it is argued, produces a second expressive harm, one with consequences for representation. According to Justice O’Connor, drawing districts that are unexplainable in terms other than race “reinforces racial stereotypes and threatens to undermine our system of rep resentative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole” (Shaw, 650). The Court does not go on to state a presumption that white constituents within a majority-black district receive inadequate representation, but this viewpoint can be inferred, as it is unclear what other scenario the Court could have in mind here. Does the conscious use of race in redistricting encourage representatives elected from majority-minority districts to favor particular racial or ethnic groups? On the affirmative side, one finds one sentence in Shaw, accompa nied by no supporting evidence. Furthermore, while one of the Shaw plain tiffs, Professor Melvin Shimm, claimed that he was injured by being

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represented by a black congressperson who wouldn’t consider his interests, other plaintiffs in Shaw and successive cases made no showing that black legislators failed to represent white constituents’ interests.
67 On the other side, much anecdotal evidence has emerged in support of the opposite posi tion: that minority representatives from majority-minority districts satisfac torily represent white constituents and, in so doing, help to reduce racial polarization.
68 To this point, the argument that minority officials are prone to misrepresenting white constituents remains speculative. At the least, the Court’s treatment of representational harms incorporates a double standard. In order to substantiate a Section 2 claim that electoral systems deny fair representation, racial minorities must show that the Gin- gles criteria have been met, and that their opportunity to participate in the political process and elect preferred candidates has been denied or abridged. Outside of the jurisdictions covered under Section 5, the presumption is that black constituents can be represented adequately by white representatives, and Section 2 plaintiffs must overcome this presumption by demonstrating that majority bloc voting enables white officials to ignore minority interests. In contrast, white plaintiffs who have been placed in majority-minority dis tricts must show only that they were assigned to a district on racial grounds, and that race was the predominant factor in districting. Such plaintiffs need demonstrate no relationship between their placement in a majority-minority district and failure to receive adequate representation. As Justice Stevens noted in his dissent in Shaw II (1996, 927) assuming a direct relationship between race-based districting and the failure of minority officials to repre sent all their constituents “could only be based on a stereotypical assumption about the kind of representation that politicians elected by minority voters are capable of providing.” One could identify two other potential effects of an excessive reliance on race in districting. First, some office-seekers might find their electoral opportunities limited by the creation of majority-minority districts. Second, white voters in majority-minority districts are treated as “filler people” (Aleinikoff and Issacharoff 1993, 601), deployed to achieve the proper racial balance in a district but expected not to influence electoral outcomes. Effects on white candidates. Neither the Voting Rights Act nor the Four teenth Amendment offers solace to white candidates disadvantaged by the creation of majority-minority districts. Section 2 defines electoral opportuni ty in terms of minorities’ opportunities to elect candidates of choice, not to elect a fellow minority. The act confers rights upon the electorate, or speci fied segments thereof; it does not grant candidates any right to have constit uents of a certain background. Similarly, the Equal Protection Clause defines

Origins of Contemporary Voting Rights Controversies
73 rights enjoyed by citizens at large, but it has not been read to give candidates the right to choose their constituents. This is not to deny that some candi dates, notably white Democrats, might fare better if majority-minority dis tricts did not siphon off large numbers of loyal Democratic voters.
69 This disadvantage, however, translates into neither a constitutional nor a statutory wrong. Effects on voters treated as “filler people.” “Filler people” resemble vote dilution victims, in that both are defined by their placement in districts where their votes are not expected to matter. When creating a majority minority district, mapmakers need to place enough minority voters in the district to ensure that the minority group can elect candidates of its choice. However, placing too many in a district produces overconcentration, or “packing,” which wastes minority votes that could be used to influence elec tions in neighboring districts. Since districts must be roughly equal in popu lation, some non-minority voters—“filler people”—are added to majority minority districts to equalize population across districts. In this conception, filler people suffer an individualized harm, as opposed to the group-based harm suffered by victims of vote dilution. If we take seriously the idea that filler people suffer some harm by virtue of their assignment to majority-minority districts, then we must indict not just race-conscious districting, but all single-member districting. Districters have always tried to help themselves and their friends, and harm their foes. Features characteristic of the gerrymander—“packing” and “cracking” (fragmenting a large and cohesive opposition bloc by scattering its members among multiple districts)—were invented long before the Voting Rights Act and had uses broader than the suppression of black political power. All dis tricting, however, can be characterized as an attempt to stack the deck; in Robert Dixon’s words (1968, 462), “all districting is gerrymandering.” As such, all partisan districting plans attempt to transform as many opposition voters into filler people as circumstances permit. Since the creation of filler people is an unavoidable consequence of single-member districting, any harm suffered by filler people in majority-minority districts will be akin to the harm suffered by all cohesive minority blocs, both racial and non-racial, within single-member districts.
Conclusion
Both lines of Voting Rights Act cases examined above—the vote dilu tion cases featuring Section 2 claims and the “wrongful districting” cases featuring Fourteenth Amendment claims—present three broad areas of con-

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cern for those favoring an active judicial role in redistricting. First, how might vague statutory and constitutional text be translated into judicially manageable standards? Second, how might courts devise appropriate reme dies for statutory or constitutional violations? Third, what are the implica tions of the Supreme Court’s conception of harm in the wrongful districting cases? “Conservative” and “liberal” courts alike have struggled with these questions. Why they have struggled, I will argue in the following chapters, results less from individuals’ inabilities to grasp the complexities of redis tricting and representation than from institutionally based factors common to a broader range of judicial participation in policy making.
1 2 3 4 5 6 7 8 Not coincidentally, all of these groups generally supported the Democratic Party (Foner 1988, 447). Also see the Civil Rights Cases (1883). The 1870 Enforcement Act prohibited state officials from discriminating against voters on racial grounds and authorized the president to appoint election supervisors who could bring suit in federal courts to counteract electoral fraud, bribery and intimidation of voters, and conspiracies to abridge the right to vote. The 1871 Ku Klux Klan Act took a broader step by defining as federal offenses conspiracies to deny citizens the right to vote, hold office, serve on juries, or enjoy the equal protection of the laws. Most of the provisions of these measures were repealed by Democrats when they gained control of the White House and Congress for the first time in the postbellum era. See Foner 1988, 454–59 and citations within for a more detailed discussion. Blacks were not the only target of suffrage restrictions, though they were the primary target. Southern legislators who voted for poll taxes and property qualifications knew that such measures would disenfranchise many low-income whites. Certain loopholes did allow for poor whites to vote, though: the grandfather clause (one could vote if his father or grandfather had been eligible to vote) and the “fighting grandfather” clause (male descendants of war veterans could vote) (Kousser 1984, 30). See Kousser 1984, 31–36; and Grofman, Handley, and Niemi 1992, 5–10. South Carolina’s “petty crimes” law, for example, included a lengthy list of offenses for which one could be disfranchised, including receipt of stolen goods, fornication, miscegenation, wife beating, and larceny. The list, however, did not include such crimes as murder, theft, or embezzlement (Kousser 1984, 35). Alabama adopted the white primary during its 1900 constitutional convention (Da vidson and Grofman 1994, 44). Louisiana’s 1898 convention disenfranchised most of the state’s blacks, but the white primary was not instituted there until 1921 (105–06). South Carolina’s white primary was instituted by statute in 1896 (194), as was Texas’s in 1903 and 1905 (235). Guinn v. U.S. (1915).

Origins of Contemporary Voting Rights Controversies
75 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The Court did uphold a white primary statute in Grovey v. Townsend (1935), but it subsequently outlawed the white primary in Smith v. Allwright (1944). Terry v. Adams (1953). See Breedlove v. Suttles (1937). This holding was overruled in 1966 in Harper v. Vir- ginia State Board of Elections. See Lassiter v. Northampton County Board of Elections (1959). Assessing the impact of judicial holdings can be difficult, since one must often consid er counterfactual scenarios, such as whether elected officials would have acted absent judicial prodding. The following few paragraphs draw largely on Grofman, Handley, and Niemi 1992, 12–16; Garrow 1978, 12–30. This loophole was the primary focus of United States v. Alabama (1960). For an in-depth examination of the role played by federal judges in the South during the civil rights movement, see Peltason 1961. For example, the act required that literacy tests be given in writing, prohibited regis trars from flunking applicants based on immaterial errors such as misspelling, and held that in any suit filed by the Justice Department, a sixth-grade education would serve as a presumptive proof of literacy. See United States v. Raines (1960), which upheld the Civil Rights Act of 1957, and United States v. Louisiana (1965), which struck down the use of “understanding” tests. The federal district court for the District of Columbia, however, held that the Justice Department may not deny preclearance solely on the basis of Section 2 considerations. See, e.g., Arizona v. Reno (1995, 321–22); Georgia v. Reno (1995, 13–14); New York v. United States (1994, 400). The Supreme Court affirmed this position in Reno v. Bossier Parish School Board (1997); it also noted, however, that Section 2 evidence might be relevant in Section 5 inquiries, insofar as evidence of vote dilution suggests an intent to produce a retrogressive plan. Citing United States Commission on Civil Rights 1975, 43. In the fourth case, Virginia allowed election judges to help qualified illiterate voters prepare their ballots. Previously, Virginia law required that a write-in vote be cast in the voter’s own handwriting. Election officials believed that this provision conflicted with Section 4(a)’s suspension of all tests and devices used as a prerequisite for vot ing. See Fortson v. Dorsey (1965), which upheld Georgia’s use of multimember districts for state senate elections; and Burns v. Richardson (1966), which upheld a Hawaii plan featuring multimember legislative districts. The jurisdictions at issue were Dallas County and Bexar County, which covers San Antonio. Such factors include “a lack of access to the process of slating candidates, the unre sponsiveness of legislators to their particularized interest, a tenuous state policy under lying the preference for multimember or at-large districting, or the existence of past discrimination in general” that “precludes…effective participation in the political sys tem,” as well as “the existence of large districts, majority vote requirements, anti single shot voting provisions and the lack of provision for at-large candidates running from particular geographic subdistricts” (Zimmer, 1305).

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25 26 27 28 29 See Washington v. Davis (1976); Arlington Heights v. Metropolitan Housing Devel- opment Corporation (1977); and Personnel Administrator v. Feeney (1979). See Nevett v. Sides (1978); Kirksey v. Board of Supervisors (1977); and Bolden v. City of Mobile (1978). Only four justices, however, were unwilling to infer discriminatory intent from the Zimmer factors. 42 U.S.C.A. §1973 (West Supp. 1983). The Court did not expressly overrule Bolden; rather, its holding in Rogers, coupled with the amendments to Section 2, effectively rendered Bolden irrelevant. These factors, which will be referred to as the Senate Report factors hereafter, are: 30 31 32 33 34 1. the extent of any history of official discrimination…that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. the extent to which voting in [that jurisdiction’s] elections…is racially polarized; 3. the extent to which the state or political subdivision has used unusually large elec tion districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group…bear the effects of discrimina tion in such areas as education, employment, and health, which hinders their ability to participate effectively in the political process; 6. whether political campaigns have been characterized by overt or subtle racial ap peals; 7. the extent to which members of the minority group have been elected to public of fice in the jurisdiction. Congress also mentioned two other potentially relevant factors: (1) “whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group”; and (2) “whether the policy underlying the…use of such voting qualification, prerequisite to voting, standard, practice, or procedure is tenuous” (U.S. Senate 1982, 29). See Jones v. City of Lubbock (1984); United States v. Marengo County Commission (1984); and McMillan v. Escambia County (1984). See Lee County Branch of the NAACP v. City of Opelika (1984); Collins v. City of Norfolk (1985); and McCord v. City of Fort Lauderdale (1986). The violation stemmed from the presence of two factors: (1) the use of English-only ballots, which was deemed a de facto literacy test, given the sizable Puerto Rican pop ulation of those counties (UJO, 184, nn. 2–3); and (2) the fact that less than half of the voting-age residents in those counties had voted in the 1968 presidential election (UJO, 148). Following the classifications used by the NAACP, the attorney general, and the Court of Appeals for the Second Circuit, the lead opinion used the term “nonwhite” to refer to black and Puerto Rican voters (UJO, 150, n. 5).

Origins of Contemporary Voting Rights Controversies
77 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 As Aleinikoff and Issacharoff (1993, 596, n. 37) note, between 1977 and 1989 the Court only once produced a majority opinion in cases involving group-based prefer ences. See United Steelworkers v. Weber (1979). See UJO, as well as United Steelworkers, 205. See, for example, Wards Cove Packing Co. v. Atonio (1989); Martin v. Wilks (1989); and Adarand v. Peña (1995). For a short-lived exception to this trend, see Metro Broadcasting, Inc. v. FCC (1990), which was overruled by Adarand. It is not coincidental that all seven states initially covered by Sections 4 and 5 were former Confederate states. The plan had required preclearance because forty of North Carolina’s one hundred counties are covered by Section 5’s special provisions (Shaw v. Barr [1992, 463]). Especially important Democratic House seats to protect were those of Steve Neal (Fifth District), who chaired a subcommittee responsible for oversight of financial in stitutions, and Charlie Rose (Seventh District), who chaired a subcommittee with ju risdiction over peanut and tobacco subsidies (Polsby and Popper 1993, 653). It is noteworthy that the first challenge to the North Carolina plan, brought in feder al district court by the North Carolina Republican Party and individual voters, main tained that the plan was an unconstitutional partisan gerrymander. The district court dismissed the plaintiffs’ claim in Pope v. Blue (1992), and the Supreme Court sum marily affirmed. Citing Shaw v. Barr (1992, 476) (Voorhees, C. J., concurring in part and dissenting in part). See Transcript of Oral Argument 16–19. Or, as Justice Douglas stated in his dissent in Wright v. Rockefeller (1964, 66–67), “When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; an tagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.” Many commentators on redistricting case law have quoted this line from Justice Stew art’s opinion in Jacobellis v. Ohio (1964, 197), in which the “it” referred to obscenity. See, for example, Karlan 1996, 288. If historical practice defines which districting principles are traditional, then these factors are at least as, and perhaps more than, traditional as compactness and mainte nance of communities of interest (Karlan 1996, 302). See chapter 1 for a fuller discussion of Reynolds v. Sims. Although the Supreme Court’s use of strict scrutiny is typically coupled with a dis claimer that the standard is not “strict in theory, but fatal in fact” (Fullilove v. Klutz- nick [1980, 519]), using strict scrutiny generally spells doom for the challenged legislation. King v. State Board of Elections (1998). Justice Thomas’s concurring opinion in Holder v. Hall (1994) recommended that Sec tion 2 be struck down. The Court currently does not appear to have the votes necessary to stage a successful frontal attack on the Voting Rights Act, as Thomas was joined only by Justice Scalia. See Justice Stevens’s discussion of North Carolina’s District 12 in Shaw II (1996, 4447–49) and Texas’s District 30 in Bush v. Vera (1996, 4470–71, 4475–76).

78
Drawing Lines in Quicksand
54 55 56 57 58 51 52 53 59 60 61 62 63 64 65 66 The Court did eventually uphold North Carolina’s District 12 in Easley v. Cromartie (2001), but there the central issue concerned the district court’s findings that race, ra ther than partisan advantage, best explained the state’s districting choices. Since, in the Court’s view, the district court had been clearly erroneous in identifying race as the predominant factor, strict scrutiny was not applied. Also see Holder v. Hall (1994, 2585–86). Though Section 2 does not mandate consideration of how minority candidates histori cally have fared in a given jurisdiction, the success of minority candidates is the only White/Zimmer factor specified in Section 2. See, e.g., Gomez v. City of Watsonville (1988). See, e.g., Monroe v. City of Woodville (1989); Citizens for a Better Gretna v. City of Gretna (1987); and McNeil v. Springfield Park District (1988). For a description and application of a functional standard, see Dillard v. Baldwin County Board of Education (1988). Citing Dillard v. Baldwin County Board of Education (1988); Neal v. Coleburn (1988); and Jeffers v. Clinton (1989). To this point the Court has assumed arguendo that compliance with the Voting Rights Act constitutes a compelling state interest, but Justice O’Connor’s concurrence in Vera indicates that she, along with the four dissenters, could form a majority in sup port of this argument. More precisely, the second variable represents the proportion of registered voters sup porting the white candidate, and the proportion of registered voters supporting the mi nority candidate. See, e.g., Judge Patrick Higginbotham’s opinion in League of United Latin American Citizens v. Clements (1993) (en banc); and O’Connor’s concurrence in Gingles, 100. Also see Whitcomb v. Chavis (1971). Justice White’s decision not to join this part of Justice Brennan’s opinion stemmed from Brennan’s statement that the race of the voter, as opposed to the race of the can didate, was relevant in identifying polarized voting. But see Grofman 1991, 1993a; and Firebaugh 1993. Recent scholarship, notably Gary King’s A Solution to the Ecological Inference Problem (1997), offers some hope that the methodological problems surrounding ecological inference can be solved, thus en abling scholars to estimate polarization more reliably. But see Rivers (1998, 443), who claims that King’s approach does not solve the ecological inference problem. The 1996 congressional elections seem to provide conflicting evidence, as several black incumbents whose districts lost their majority-black status as a result of Miller, Shaw II, and Vera managed to hold their seats. Determining whether this represents a sea change or an aberration requires an examination of voting patterns not only in sub sequent congressional elections, but also in state and local contests. Such an examina tion lies beyond the scope of this project. For recent studies examining the relationship between redistricting and substantive representation for minorities, see Lublin 1997 and Cameron, Epstein, and O’Halloran 1996. See, e.g., Johnson v. DeGrandy (1994). Throwing additional protected groups into the mix need not intensify the battle, though. In recent years, “rainbow coalition” lawsuits have featured coalitions of minority plaintiffs, usually black and Latino, collectively seeking Section 2 protection that neither group, due to insufficient numbers, could re-

Origins of Contemporary Voting Rights Controversies
79 67 68 69 ceive on its own. See, e.g., Nixon v. Kent County (1996) (en banc). The Supreme Court has not yet heard a minority coalition case, but the growth of protected groups, both in numbers and diversity, makes it likely that the Court eventually will be con fronted by the issue. Conference 1994, 46 (statements of Anita Hodgkiss), 51 (statements of J. Morgan Kousser), 52 (statements of Penda Hair). See Johnson v. Mortham (1996, 1499–1501), in which the district court received tes timony and affidavits from residents and political officials, white and black, attesting to the effective representation provided by Corrine Brown, an African-American rep resenting Florida’s Congressional Third District. In a report prepared for Shaw v. Hunt, Allan Lichtman reported the results of a 1993 survey of constituent contacts showing that whites were about twice as likely to contact North Carolina’s African American representatives, Eva Clayton and Melvin Watt, as were blacks (Kousser 1995, 661). Indeed, the lead plaintiff in Shaw v. Reno, Ruth Shaw, told reporters that she had voted for Watt (Morrill 1993, A1). See Lublin 1997.