BENJAMIN E. GRIFFITH
P. O. DRAWER 1680
123 SOUTH COURT STREET
CLEVELAND, MS 38732
PHONE NO. 601-843-6100
FAX NO. 601-843-8153

Racial gerrymanders, even for remedial purposes, 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 14th and 15th Amendments embody, and to which the Nation continues to aspire.

Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.... The law regards man as man, and takes no account of his surroundings or of his color when his civil rights guaranteed by the law of the land are involved.

The Fifteenth Amendment was ratified five years after the Civil War to guarantee that "the right of citizens...to vote" would not be "denied or abridged...by any state on account of race, color or previous condition of servitude."

For almost a century after the Fifteenth Amendment was ratified, racial discrimination in voting persisted in parts of this Nation, prompting Congress to enact the Voting Rights Act of 1965. The Act's goal of guaranteeing racial minorities access to the polls was apparently met, but many felt it did not root out sometimes subtle, ostensibly race-neutral voting practices.

A number of states...refused to take no for an answer and continued to circumvent the Fifteenth Amendment's prohibition through the use of both subtle and blunt instruments, perpetuating ugly patterns of pervasive racial discrimination.

Practices which affected the right to vote by a dilution of minority voting strength included the racial gerrymander, the "deliberate and arbitrary distortion of district boundaries...for [racial] purposes." Davis v. Bandemer , 478 U.S. 109, 164 (1986) (Powell, J. concurring in part and dissenting in part). See Gomillion v. Lightfoot , 364 U.S. 339, 340 (1960), describing the boundaries of the City of Tuskegee as "an uncouth 28-sided figure." In B. Grofman, L. Handley and R. Niemi, Minority Representation and the Quest for Voting Equality (Cambridge University Press 1992)[hereinafter cited " Minority Representation "], the authors state:

Yet even before the Voting Rights Act was passed, it was apparent that voting was only the first hurdle to effective participation. The resurgence of black electoral participation brought to light a second-order obstacle that had remained obscure as long as blacks were completely excluded from the political process. Jurisdictions that wished to continue to discriminate against blacks simply moved from denying them access to the ballot to more sophisticated schemes developed to dilute the impact of their new voting strength. Devices such as at-large elections, anti-single-shot laws, a decrease in the size of legislative bodies, racial gerrymandering, exclusive slating, and changing offices from elective to appointive ensured that although blacks might vote, they would often be unable to elect candidates of their choice. Id . at 23-24.

If the size of permissible deviations is unclear in the general case, the situation is more complicated when the justification is prevention of minority vote dilution. Non-discriminatory effects of districting are required by Section 2 of the Voting Rights Act. Does this federal requirement justify somewhat greater deviations from equality than other factors?... It depends on an analysis of the case at hand and on the specificity and consistency with which that rationale is applied. But that still leaves a good deal of ambiguity. (Footnotes omitted.)

In 1982 when Congress amended the Voting Rights Act of 1965, one of the most controversial amendments and the subject of the most heated debates was Section 2.

Section 2(a) of the Voting Rights Act prohibits any "voting qualification or prerequisite to voting or standard, practice, or procedure...which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. 1973(a). Section 2(b) provides:

A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 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: provided, that nothing in this section establishes a right to have members of protected class elected in numbers equal to their proportion in the population.

The operative definition of vote dilution comes from this revised language of 2 of the Voting Rights Act.

In Thornburg v. Gingles , 478 U.S. 30, 50-51 (1986), the Supreme Court set forth the "necessary preconditions" for plaintiffs to prevail in a vote dilution action under 2:

First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district....

Second, the minority group must be able to show that it is politically cohesive ....

Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it--in the absence of special circumstances, such as the minority candidate running unopposed,... usually to defeat the minority's preferred candidate.

If the Gingles threshold test is satisfied, Plaintiffs must then demonstrate under the totality of circumstances that, as a result of the challenged practice or procedure, they do not have an equal opportunity to participate in the political process and to elect candidates of their choice.

As the Supreme Court noted in Gingles , the Senate Judiciary Report which accompanied the 1982 Voting Rights Act Amendments elaborated on the nature of 2 violations and the proof required to establish those violations, specifying certain "objective factors" and enhancing factors which typically may be relevant to a 2 claim. These factors were culled from the decision of the United States Supreme Court in White v. Regester , 412 U.S. 755 (1973), and the decision of the United States Court of Appeals for the Fifth Circuit in Zimmer v. McKeithen , 485 F.2d 1297 (5th Cir. 1973)( en banc ). These factors necessarily call for evidence of the circumstances of the local political landscape and include, but are not necessarily limited to, the following:

(1) The extent of any history of official discrimination in the state or political subdivision 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 the elections of the state or political subdivision is racially polarized ;

(3) The extent to which the state or political subdivision has used unusually large election 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 in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;

(6) Whether political campaigns have been characterized by overt or subtle racial appeals ;

(7) The extent to which members of the minority group have been elected to public office in the jurisdiction.

Additional factors which may be probative include:

(8) 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.

(9) Whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous .

To prevail on such a claim, a class of minority voters must first satisfy certain threshold requirements set forth by the Supreme Court in [ Gingles ]. Minority voters must then offer evidence of the circumstances of the local political landscape--many of which Congress specifically listed in the 1982 amendments to Section 2 as being relevant to the inquiry. Ultimately, the Gingles threshold inquiry and the broad, totality of circumstances inquiry are designed to probe whether the challenged election practice "has resulted in the denial or abridgement of the right to vote based on color or race." (Citations omitted.)

These fundamental principles were reaffirmed in Growe v. Emison , ___ U.S. ___, 113 S.Ct. 1075, 122 L.Ed.2d 388, 404 (1993), wherein Justice Scalia stated for a unanimous Court:

The "geographically compact majority" and "minority political cohesion" showings are needed to establish that the minority has the potential to elect a representative of its own choice in some single-member district.... And, the "minority political cohesion" and "majority bloc voting" showings are needed to establish that the challenged districting thwarts a distinctive minority vote by submerging it in a larger white voting population.... Unless these points are established, there neither has been a wrong nor can be a remedy .

The Senate Judiciary Committee also instructed the Courts not to become bogged down in "mechanical point counting," and that:

there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.... [T]he question whether the political processes are "equally open" depends upon a searching, practical evaluation of the "past and present reality"...and on a "functional" view of the political process.

Resolution of claims under 2, as amended, requires close analysis of unusually complex factual patterns. This is often done in a supercharged atmosphere that brings to the surface major concerns over interference with state or local government functions.

The essence of a Section 2 claim is that a certain electoral law, practice or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.

To suggest that blacks are driven solely by race and, therefore, committed to casting their votes for only black candidates, besides taking their vote for granted, is a misapplication of the Voting Rights Act.... The purpose of the Voting Rights Act was to eradicate impediments designed to deny blacks (and other protected groups) the right to vote and participate in the political process. Plaintiffs equate the failure of a black candidate to emerge from a political contest as the winner with denying blacks effective political participation. Such contentions are an aberration of the legislative intent behind the Voting Rights Act. The landmark legislation sought to insure political participation, not proportional representation.

Thus, this Court is directly confronted with the question, does Section 2 of the Voting Rights Act require a legislative body to affirmatively gerrymander districts so as to maximize minority voting? Put another way, does a legislative body have to draw lines in a distorted way, so as to create as many black majority districts as possible? This Court thinks the answer to both questions is no.... Section 2 of the Voting Rights Act does not guarantee minority representation even in direct proportion to the minority percentage of the population, rather it specifically excludes such a guarantee of proportionate representation.

Now that over ten years have passed since enactment of amended 2, it may be helpful to return to the legislative history. During the 1982 Senate debates before the Senate Judiciary Committee, opponents of 2's "results test" predicted that it would be "a divisive factor in local communities by emphasizing the role of racial politics," and charged that the results test assumed that "race is the predominant determinant of political preference." S. Rep. No. 97-417 at 31, 33.

The Senate Judiciary Committee's Majority Report sharply disagreed:

To suggest that it is the results test, carefully applied by the courts, which is responsible for those instances of intensive racial politics, is like saying that it is the doctor's thermometer which causes high fever.

The results test makes no assumptions one way or the other about the role of racial political considerations in a particular community. If plaintiffs assert that they are denied fair access to the political process, in part, because of the racial bloc voting context within which the challenged election system works, they would have to prove it.

These same concerns were echoed in Houston v. Haley , 859 F.2d 341, 342-43 (5th Cir. 1988):

We can only wonder whether, supposing that the proposed new system still fails to produce a black winner, we will then be asked to continue down the slippery slope, mandating new designs which segregate blacks into greater and greater concentrations until at last a black is elected? Somewhere along this downward course, the goal of an open and pluralistic political process, where groups bargain among themselves, is transformed into one of proportional representation by persons beholden for office to discrete ethnic groups.

Here the individual is important, not his race, his creed or his color.... When racial or religious lines are drawn by the state, the multi-racial, multi-religious communities that our Constitution seeks to weld together as one becomes separatist; antagonisms 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.

Plaintiffs' analysis essentially presumes that the greater support for white candidates among whites voting in heavily white precincts is sufficient to demonstrate that whites vote as a bloc to defeat the preferred candidate of blacks. Such presumptions are unacceptable. It, by no means, is a foregone conclusion that blacks vote only for blacks in black vs. white elections. To presume that black voters are beholden to black candidates does the minority group an injustice and makes a travesty of the Voting Rights Act .

An equally unfair presumption is that only black candidates represent, share and appeal to the concerns of the black electorate.

A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid . It reinforces 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. We have rejected such perceptions elsewhere as impermissible racial stereotypes.... By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.

Opponents of the results test also noted in many cases that racial bloc voting was not so monolithic as the 2 proponents claimed and that minority voters do receive substantial support from white voters. S. Rep. No. 97-417, at 33.

In other words, there is no evidence that racial bloc voting is inevitable and reason to doubt that fair representation depends on racial identity. Legislation which assumes the contrary may itself have the detrimental consequence of establishing racial polarity in voting where none existed, or was merely episodic, and of establishing race as an accepted factor in the decision-making of elected officials.

The Senate Judiciary Committee's Minority Report did not embrace this point of view and in fact sounded a note of pessimism:

That statement is correct, but misses the point. It is true with respect to most communities, and in those communities it would be exceedingly difficult for plaintiffs to show that they were effectively excluded from fair access to the political process under the results test.

Unfortunately, however, there still are some communities in our Nation where racial politics do dominate the electoral process.

In the context of such racial bloc voting, and other factors, a particular election method can deny minority voters equal opportunity to participate meaningfully in elections.

In a series of scholarly articles challenging the claim that the presence of minority officeholders changes the dynamics of majority decisionmaking, a number of scholars including Lani Guinier, a Professor at the University of Pennsylvania Law School, began "searching for ways to increase minority influence in systems that are fundamentally majoritarian in tone," Minority Representation , supra at 127. Guinier and others argued:

[i]n favor of formal mechanisms to give "proportionate influence," such as those found in some consociational democracies, in which, for example, groups may be allocated control of shares of certain government budgets.

Guinier argued that the increase in the number of black elected officials "has not visibly altered the disadvantaged socioeconomic condition or social isolation of black voters" and that "sustained black mobilization has not emerged despite some black electoral success." Minority Representation , supra at 136. See L. Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success , 90 Mich. L. Rev. 1077-1154 (1991); L. Guinier, Keeping the Faith: Black Voters in the Post-Reagan Era , 24 Harvard Civil Rights-Civil Liberties L. Rev. 393-435 (1989); L. Guinier, Voting Rights and Democratic Theory: Where Do We Go From Here? . In Bernard Grofman and Chandler Davidson, Eds., Controversies in Minority Voting: A 25-Year Prospective on the Voting Rights Act of 1965 (Brookings Institution, Washington, D.C. 1992), Guinier called for "proportionate influence," which would be achieved by devices such as supermajority voting requirements and rotation of legislative presiding officers. L. Guinier, Voting Rights and Democratic Theory , supra . See also L. Guinier, No Two Seats: The Elusive Quest for Political Equality , 77 Va. L. Rev. 1413, 1440 n. 101 (1991)("Although I do not here explore fully either the fundamental democratic principles at stake or the competing constitutional values, I intend to pursue these issues elsewhere . See Lani Guinier, Beyond Majoritarianism: A Theory of Representation of Minority Interests (September 14, 1991)(unpublished manuscript)(on file with the Va. L. Rev. Assn.).")

Guinier advocated a "proportional interest representation" theory, which was summarized in Voting Rights and Democratic Theory: Where Do We Go From Here? , supra , an approach which would restructure how legislatures pass laws, whereby they would function, not by majority rule, but by a consensus that required the backing of black and other minority representatives.

Guinier's writings were closely scrutinized on the occasion of her nomination for the office of Assistant Attorney General for the Civil Rights Division, a nomination which set the stage for a national debate on racial politics. Some commentators depicted Guinier as a racially paranoid social engineer whose views about the Voting Rights Act are "startlingly extreme, unworkable, and as a matter of statutory interpretation, extraordinarily far-fetched." S. Taylor, "DOJ Nominee's 'Authentic' Black Views," in "Taking Issue," Legal Times , May 17, 1993, p. 23. Others, notably Duke Law Professor James E. Coleman, Jr., came to her defense:

In a 1991 Michigan Law Review article, "Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success," Guinier discusses the concept of "authentic representative" in the context of her detailed critique of the Theory of Black Electoral Success. That theory underlies the current race-conscious remedial approach, the aim of which is to elect black candidates. According to scholars who adhere to this view, an "authentic representative may be an individual who is community-based and culturally and physically similar to his or constituents." Guinier does not endorse this viewpoint in her Michigan article; she does not endorse it in any of her other writings; and she does not endorse it in fact. Indeed, she notes in the Michigan Law Review article that, if the concept were properly applied, an "authentic representative" need not be black as long as the source of their authority, legitimacy, and power base is the black community.

Guinier's supporters also, in my opinion, seem to believe they can sell her as a "mainstream" thinker only by disingenuously denying that she has ever said some things that she has, in fact, said rather clearly. They seek to divert attention from her attacks on majority rule as we know it, and her advocacy of a court-enforced system of "proportional power sharing" wherever black voters and legislators cannot win a "fair proportion" of their policy goals--such as "redistributing political power and economic wealth"--from a white majority.

The President admitted that he had not read Guinier's legal writings before he nominated her and said he would not have made the nomination had he done so. He said his staff had not flagged him about the "intense controversy" her Law Review articles would spark and the "ordeal", as he phased it, that Guinier would undergo as a result.

The President's move ignited anger and sharp reactions from the civil rights community and the Congressional Black Caucus. Part of the aftermath of the Guinier nomination withdrawal included an editorial by Mary Ann Glendon, Professor at Harvard Law School, who stated:

Why is it that the 43 year old legal educator had no inkling of how unrealistic were her prescriptions for one of America's gravest social issues? The fact is, by Professor Guinier's student days in the 70's, the nation's elite law schools were increasingly exalting theory over practice, and judicial decisionmaking over ordinary politics. A growing disdain for the practical aspects of law, a zany passion for novelty, a confusion of advocacy with scholarship, and a mistrust of majoritarian institutions all contribute to a relatively homogenous political culture within the cloister. No wonder products of that hot-house environment wilt quickly in the open marketplace of ideas.

Guinier herself characterized President Clinton's withdrawal of her nomination as "an unfortunate metaphor for the way race and racism are viewed in this society." Speaking at the Annual Convention of the NAACP in Indianapolis on July 13, 1993, Guinier stated:

We are being defined, we are being characterized, we are being misrepresented by the people...who are not sympathetic to issues of quality and real democracy.... Unless we want to be known as race-obsessed radicals, we are no longer permitted to discuss racism in polite conversation or law articles.

Even before the Guinier nomination, much caustic and quite provocative commentary had been generated on the racial division, polarization and ghettoization which some see as inevitable consequences of the racial gerrymandering encouraged or facilitated by 2 of the Voting Rights Act.

Victimization Rhetoric

In a stinging editorial entitled "The High Cost of Playing Victim" published almost two years ago, John Leo made this trenchant analysis of the debate among blacks about victimization in an era of racial polarization:

The rhetoric of victimization enforces the view that the poor and the demoralized are little more than observers in their own lives. It teaches the young that they cannot be expected to succeed, except perhaps as part of a complaining victim group. It mocks the connection between striving and success . It makes black-white alliances unlikely and it subtly depicts black success as a kind of commodity that whites control and refuse to dole out to blacks . This is a dead form of racial politics. Can't we get beyond it?

Another commentator targeted the apparent racial polarization which, 28 years after the Civil Rights Act, continues to frustrate consensus on some of the most important issues facing our nation. Addressing what he labels "one of the most pernicious myths underlying racial division: that blacks and whites have fundamentally different views and aspirations," Clint Bolic, Litigation Director at the Institute for Justice in Washington, recently said:

This myth has fueled demagogues on both sides of the racial divide, especially in the aftermath of the Los Angeles riots. But poll results just released by the left-leaning Joint Center for Political Studies reveal that most blacks aspire like other Americans to safe streets, good schools and home ownership.

Of equal import, the survey demonstrates that mainstream black Americans are far more conservative than most of the politicians and organizations that purport to speak for them . This philosophical gulf perhaps was most pronounced near the end of the Clarence Thomas confirmation hearings, when national groups like the NAACP stridently opposed the Supreme Court nominee while blacks in general approved by a 3 to 1 ratio (along with some local NAACP chapters).... Indeed, the remaining task of the civil rights struggle is not to redistribute opportunities through a divisive and counterproductive racial spoils system, but to empower those who have been denied opportunities .

At the other end of the spectrum is the bitter analysis of racial attitudes in America described by Andrew Hacker Scribner in Two Nations: Black and White, Separate, Hostile, Unequal , in which the author charges that white America not only has been, but essentially still is, to blame for all black America's problems.

It is white America that has made being black so disconsolate an estate. Legal slavery may be in the past, but segregation and subordination have been allowed to persist . Even today, America imposes a stigma on every black child at birth .

Just a few months ago, Abigail Thernstrom, Adjunct Professor at Boston University and author of "Whose Votes Count? Affirmative Action and Minority Voting Rights" (Harvard Univ. Press 1987), criticized the intrusiveness of redistricting rules which envision "safe minority seats" and other related rules imposed upon localities and states by the Justice Department, noting:

[N]either racially gerrymandering district lines nor permanently freezing the power of black elected officials will do anything to repair broken lives, broken cities and a broken sense of trust across the racial divide. On racial matters both the traditional civil rights groups and the Justice Department seem hopelessly and dangerously confused. It's time to turn our gaze elsewhere.

There are voices out there crying for a common ground that transcends racial class considerations, race-based allegiances, and race-based assignments of citizens to political groups. There are voices that rally against insidious efforts to define racial classes by identifying racially homogeneous precincts and electoral districts so as to herd people into racially segregated political groups. This sort of political "ghettoization," described by Professor Walter Berns of the American Enterprise Institute, in his testimony during the Senate hearings in 1982, S. Rep. No. 97-417, at 150, has unfortunately proved to be the path of least resistance in what we can only hope will be a handful of cases in which the federal courts have adopted a race-based mindset which cuts across the general forward direction of the developing body of 2 precedent.
 

The Courts in a number of recent cases have rejected blatant attempts at racial gerrymandering

by Plaintiffs in 2 litigation. In Clarke v. Calhoun County , supra at 1198, Chief Judge L. T. Senter noted, in rejecting the Plaintiffs' proposed redistricting plan:

Blacks from three separate and distinct municipalities, each having diverse interests, were extracted to form District 1. This exercise results in extreme gerrymandering, Plaintiffs' proposed black district having been "drawn in an unusual or illogical manner to enhance the voting power of a particular...voting bloc at the expense of other individuals or groups who would be elected or help elect the candidates of their choice. (Citations omitted.)

While black candidates have met with success, they have also experienced defeat. Some positions, they simply have never sought. Further redistricting of Attala County, however, is certainly no guarantee of additional black candidate victories. If, hypothetically, the Court were to order implementation of a new voting scheme that "still fail[ed] to produce [more] black winner[s], the Court can easily envision entertaining even further requests to "mandat[e] [alternate] designs which segregate blacks into greater and greater concentrations until at last a black is elected[.] (Citations omitted.)

There seems to be strong argument today, from some quarters, that courts should gerrymander districts so that black voters are segregated into certain districts and white voters are segregated into other districts. The Plaintiffs' experts testified concerning racial polarization which the Court finds to be present in Lawrence County. Such an affirmative segregation of voters in Lawrence County would, in the opinion of this Court, further polarize voters and ultimately reduce the effective influence of black voters (with one clear majority district, theoretically, black voters control that district and have substantial influence in two other beats; if black voters are segregated into two districts, they would control elections for two Supervisors but have little or no influence with the remaining three Supervisors because they would have so few votes in those beats).

A persistent and still unresolved issue which has arisen in the context of 2 claims predicated in part on a showing of a lack of electoral success is the "influence" theory.

The Supreme Court has thrice left open the question whether a "influence" theory is viable under 2, first in Thornburg v. Gingles , 478 U.S. at 46 n. 12, 106 S.Ct. at 2764 n. 12, and again in Chisom v. Roemer , 111 S.Ct. 2354, 2365 n. 24, 115 L.Ed.2d 348 (1991), and Voinovich v. Quilter , infra , Slip Op. at 6-8.

Under this theory, the plaintiffs may argue that the existence of a multi-member district as opposed to single-member districts reduces their opportunity and those whom they represent to participate in elections and to elect representatives of their choice. Plaintiffs argue in such a case that they are entitled to a remedy in the form of an "influence" district, a single-member district which, although not containing a majority of minority voters, would contain enough of those voters to "influence" the choice of a representative.
 

There is authority pointing both ways on the legal argument as to whether there is such a thing as an "influence" claim under 2. The three-judge court in the Northern District of Ohio allowed an influence claim in Armour v. Ohio , 775 F. Supp. 1044 (N.D. Ohio 1991), as did the Ninth Circuit in Garza v. County of Los Angeles , 918 F.2d 763 (9th Cir. 1990), cert. denied, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). The Seventh Circuit rejected an influence claim in McNeil v. Springfield Park District , 851 F.2d 937 (7th Cir. 1988), cert. denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204 (1989), as did the Fifth Circuit in Brewer v. Ham , 876 F.2d 448 (5th Cir. 1989).

The United States District Court for the Western District of Arkansas concluded that there were no legal standards to differentiate those cases in which an "influence" single-member district should be created from those in which it should not, in West v. Clinton , 786 F. Supp. 803, 807 (W.D. Ark. 1992).

The law does not require that multi-member districts be invalidated whenever minority voters, by being bunched or packed together in a single-member district, would be more numerous than they are in the multi-member district. In other words, to take an extreme example, if a three-member district contained a minority population of one percent, but a single-member district could be drawn containing a minority population of three percent, there would not be a violation of law simply because the "influence" of minority voters could, in some sense, be tripled. The Voting Rights Act does not require, invariably and in every instance, that districts be drawn so as to maximize minority political power . Such a result would be akin to a requirement of proportional representation , which the Voting Rights Act itself rejects. Id . at 806. In short, to put it in practical terms, there is no concrete proof that minority voters would be better off with their own single-member district . They are not numerous enough to elect a representative without help, and there is no proof that they would have enough help to elect a different representative, or even that the same representative would behave differently in some relevant way. Id . at 807. (Emphasis added)

Black voters in such influence districts, of course, could not dictate electoral outcomes independently, but they could elect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes from white voters. We have not yet decided whether influence-dilution claims such as Appellees are viable under Section 2...; nor do we decide that question today .

North Carolina's black population is relatively dispersed. The black voting age population is about twenty percent, and blacks constitute a majority in just 5 out of 100 counties.

Following the 1990 census, the North Carolina General Assembly enacted a reapportionment plan which provided for one majority-black Congressional district out of a total of twelve, centering in the region of the state where the largest concentration of blacks lived. The Attorney General of the United States interposed an objection to the plan under 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. The Attorney General took the position that the General Assembly could have, but for pretextual reasons failed to, create a second majority-minority district "to give effect to black and native American voting strength in this area [by] using boundary lines [no] more irregular than [those] found elsewhere in the proposed plan." Shaw v. Reno , supra , Slip Op. at 3.

The General Assembly, at the Attorney General's urging, enacted a revised reapportionment plan that created a second majority-minority district.

The Attorney General precleared the revised plan, but even though the Attorney General had no objection to this plan, a group of five white registered voters and residents of Durham, North Carolina, did. They filed an action for declaratory and injunctive relief, charging that the state had created an unconstitutional racial gerrymander, by deliberately creating

two Congressional districts in which a majority of black voters was concentrated arbitrarily--without regard to any other considerations, such as compactness, contiguousness, geographical boundaries or political subdivisions [with] the purpose [to] create Congressional districts along racial lines [and] to assure the election of two black representatives to Congress.

The appearance and configuration of the two majority-black districts contained in the precleared revised plan at issue in Shaw v. Reno are of more than passing interest.

The two Congressional districts lived up to The Wall Street Journal 's "political pornography" label.

District 1 was described as "hook-shaped," with "finger-like extensions" and was compared to a "Rorschach ink-blot test" and a "bug splattered on a windshield." Shaw v. Reno , supra , Slip Op. at 3.

District 12, "even more unusually shaped," was a 160-mile long district.

It winds in snake-like fashion through tobacco country, financial centers and manufacturing areas "until it gobbles in enough enclaves of black neighborhoods."... Northbound and southbound drivers on I-85 sometimes find themselves in separate districts in one county, only to "trade" districts when they enter the next county.... One state legislator has remarked that "if you drove down the interstate with both car doors open, you'd kill most of the people in the district."

The lower court dismissed the action against the state under Rule 12(b)(6), finding that there was no support for the contention that race-based districting is unconstitutional. The lower court held that the equal protection claim was barred by United Jewish Organizations v. Carey , 430 U.S. 144 (1977), reasoning that a redistricting plan violates the rights of white voters only if "adopted with the purpose and effect of discriminating against white voters...on account of their race." Shaw v. Barr , 808 F. Supp. at 472 (E.D. N.C. 1992).

The purposes of favoring minority voters and complying with the Voting Rights Act are not discriminatory in the constitutional sense, the Court reasoned, and majority-minority districts have an impermissibly discriminatory effect only when they unfairly dilute or cancel out white voting strength. Because the state's purpose here was to comply with the Voting Rights Act, and because the General Assembly's plan did not lead to proportional underrepresentation of white voters statewide, the majority concluded that appellants had failed to state an equal protection claim.

It seems that the smoke had just cleared from the Branch-Davidian compound when Janet Reno was faced with Waco II , a 5-4 decision handed down on June 28, 1993, in Shaw v. Reno . The reaction from various civil rights groups, the public and commentators was immediate and overwhelming. Even though this case was not brought under the Voting Rights Act, it has a clear impact on voting rights.

Among the commentators on the Shaw v. Reno ruling was none other than Lani Guinier, who stated in her July 13, 1993, speech to the NAACP Annual Convention:

The Supreme Court discovered an entirely new constitutional right for white voters, entirely new.... The Supreme Court said that the five white voters, who have not been injured in any direct individual or group sense--that these white voters can nevertheless challenge a district because it is aesthetically offensive .... This business about appearances cuts only one way. If you are black, and there is a Congressional district in your state that you think looks funny, and if you think it looks funny because it is a majority white district in which the voters have consistently refused to vote for any candidate supported by the black community--you must first show that the district was drawn with an intention to discriminate against you, and you must show that you have suffered a discriminatory effect under our Constitution as interpreted by this U.S. Supreme Court--that is, if you are black.... Unlike black voters, all these white voters had to show was that the district had an odd and irregular shape . In the name of race neutrality, they were able to establish a constitutional right to challenge this district, which had in effect been drawn to remedy 100 years of exclusive and white domination.

Noting Justice Sandra Day O'Connor's statement in Shaw v. Reno that the result of the efforts in North Carolina to create minority districts "bears an uncomfortable resemblance to political apartheid," commentators pointed out that post-1990 census efforts to create "so-called affirmative action minority districts" was under attack, and that the next battle was already underway in the State of Louisiana, involving the Fourth Congressional District which "looks as if it was designed by Johnny Appleseed."
 

The Court in Shaw v. Reno , after tracing the history of vote dilution claims, focused on the Plaintiffs-Appellants' claim that the State of North Carolina had engaged in unconstitutional racial gerrymandering:

That argument strikes a powerful historical chord: It is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past.

Drawing upon Gomillion 's facts wherein a "tortured municipal boundary line was drawn to exclude black voters," whereby the plan was considered so highly irregular that on its face could not rationally be understood as anything other than an effort to segregate voters on the basis of race, the Court emphasized:

[R]eapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid.

Throughout the majority opinion in Shaw v. Reno , the Court emphasized the need to adhere to traditional districting principles when engaged in the redistricting process. Specifically, the Court held that the Plaintiffs-Appellants stated a claim upon which relief could be granted under the Equal Protection Clause where they objected to 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.

Citing Gomillion , the Court made it clear that a racial gerrymander would receive no less scrutiny under the Equal Protection Clause than any other state legislation classifying citizens by race, and that a reapportionment plan in some exceptional cases may be so highly irregular that on its face it rationally could not be understood as anything other than an effort to segregate voters based on race:

So, too, would be a case in which a state concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity and respect for political subdivisions.

The Court also pointed out that in its highly fractured decision in United Jewish Organizations v. Carey , supra , a redistricting plan which split members of the Hasidic community between two districts, was not challenged as being so highly irregular that it could rationally be understood only as an effort to segregate voters by race, that the facts of that case would not have supported such a claim, and that the New York legislation was approved by three Justices "precisely because it adhered to traditional districting principles":

We think it...permissible for a state, employing sound districting principles such as compactness and population equality, to attempt to prevent racial minorities from being repeatedly outvoted by creating districts that will afford fair representation to members of those racial groups who are sufficiently numerous and whose residential patterns afford the opportunity of creating districts in which they will be in the majority. Id . at 168.

We note, however, that only three Justices in UJO were prepared to say that states have a significant interest in minimizing the consequences of racial bloc voting apart from the requirements of the Voting Rights Act. And those three Justices specifically concluded that race-based districting, as a response to racially polarized voting, is constitutionally permissible only when the state "employ[s] sound districting principles," and only when the effected racial group's "residential patterns afford the opportunity of creating districts in which they will be in the majority."

The narrow issue decided by the U.S. Supreme Court in Shaw v. Reno was whether Appellants stated an equal protection claim which could withstand a Rule 12(b)(6) Motion to Dismiss where they claimed

(1) the redistricting legislation was so extremely irregular on its face

(2) that it rationally could be viewed only as an effort to segregate the races for purposes of voting

(3) without regard for traditional redistricting principles and

(4) without sufficiently compelling justification. (Slip Op. at 10).

As to what might constitute such a "sufficiently compelling justification," the Court stated:

It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in non-racial terms successfully could be challenged. Thus, we express no view as to whether "the intentional creation of majority-minority districts, without more" always gives rise to an equal protection claim.

The Court in Shaw v. Reno agreed with the contention of the Plaintiffs-Appellants that redistricting legislation so bizarre on its face that it cannot be explained on grounds other than race "demands the same close scrutiny that we give other state laws that classify citizens by race." (Slip Op. at 12.)

The Court further agreed with the Plaintiffs-Appellants that Gomillion v. Lightfoot , supra , supported their contention that:

District lines obviously drawn for the purpose of separating voters by race require careful scrutiny under the Equal Protection Clause regardless of the motivations underlying their adoption. Slip Op. at 13.

thus, if Appellants' allegations of a racial gerrymander are not contradicted on remand, the district court must determine whether the General Assembly's reapportionment plan satisfies strict scrutiny. Id .

In addressing the issue of what level of scrutiny is required in the reapportionment context, the Court emphasized:

The states certainly have a very strong interest in complying with federal anti-discrimination laws that are constitutionally valid as interpreted and as applied. But in the context of a Fourteenth Amendment challenge, courts must bear in mind the differences between what the law permits, and what it requires.

For example, on remand, North Carolina might claim that it adopted the revised plan in order to comply with the Section 5 "non-retrogression" principle. Under that principle, a proposed voting change cannot be precleared if it will lead to "a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States , 425 U.S. 130, 141 (1976). (Slip Op. at 22)... [W]e do not read Beer or any of our other Section 5 cases to give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of non-retrogression. A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the state went beyond what was reasonably necessary to avoid retrogression. Slip Op. at 23.

In Shaw v. Reno , the state had contended that the North Carolina General Assembly's revised redistricting plan was required, not to prevent retrogression, "but to avoid dilution of black voting strength in violation of Section 2...." Slip Op. at 24. The Supreme Court in this regard noted that the following issues remained open for consideration on remand:

(1) Whether the General Assembly's revised plan could not have been required by 2;

(2) Whether the state's black population was too dispersed to support two geographically compact majority-black districts, as the bizarre shape of one of the districts demonstrates;

(3) Whether there was no evidence of black political cohesion;

(4) Whether recent black electoral successes demonstrate the willingness of white voters in North Carolina to vote for black candidates;

(5) Whether 2, if it does require adoption of North Carolina's revised plan, is to that extent unconstitutional. Slip Op. at 24-25.

If the allegation of racial gerrymandering remains uncontradicted, the district court further must determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest.

The goals of 2 of the Voting Rights Act of 1965, as amended and extended, are to assure minority voters an equal opportunity to participate in the political process and equal access to that process. The ability to elect representatives of their choice is a key focus in 2 litigation.

Race should not become the basis for distributing voters in the redistricting process. In a nutshell, equal opportunity and access are not synonymous with guaranteed electoral success, nor should they ever be. Unfortunately, racial gerrymandering has become a byproduct of this redistricting process. It finds its roots in the same impermissible racial stereotypes that, over 30 years ago, excluded black voters from the city limits of Tuskegee, Alabama.

The only circumstances which should give rise to or permit race-based redistricting should be where a plan is narrowly tailored to the goal of avoiding retrogression in minority voting strength or a similar sufficient justification, and then only where proper regard is had for traditional districting principles such as compactness, contiguity and respect for maintaining the integrity of political subdivisions.

Any other resort to racial gerrymandering or any other form of race-based redistricting irreconcilably conflicts with the democratic ideal embodied in our system of representative democracy and transgresses the Equal Protection Clause.