With the United States Census 2000 right around the corner, state and local government entities will soon grapple with new constitutional guidelines for the allocation of political power, just as our Nation as a whole is coming to grips with whether and to what extent it can function as a multi-cultural, multi-ethnic, multi-racial society. ¹

The future of the United States that will evolve after the dawn of January 1, 2000, is tied to the future of race relations and the knotty problems of race in an era when ethnic and racial lines are beginning to blur. Those constitutional guidelines are rooted in and flow from race-predominant redistricting during the past decade that spawned many bizarrely-shaped and racially segregated Congressional, state legislative, county board and other districts on the local government level. Dubbed "political apartheid", ² this balkanization process created not only unseemly districts but also led to unbearable tension between the race-conscious requirements of 2 of the Voting Rights Act and the constitutional constraints upon race-based official action under the Fourteenth Amendment to the United States Constitution. ³

Those guidelines began to take shape with the Supreme Court's 1993 decision in Shaw v. Reno , ⁴ in which the Court, speaking through Justice Sandra Day O'Connor, suggested that drawing race-conscious districting lines may widen the racial divide rather than get us beyond race. ⁵ The Court's 1995 blockbuster, Miller v. Johnson , ⁶ brought into even sharper focus the inevitable tension that takes place when a state or local government entity simultaneously attempts to satisfy the race-conscious mandate of 2 of the Voting Rights Act, while not running afoul of the Fourteenth Amendment's prohibition against race-predominant decisionmaking. By the end of the Court's 1996 term, a coherent body of constitutional precedent was in place, centered on the Texas and North Carolina congressional district cases of Vera v. Bush ⁷ and Shaw v. Hunt , ⁸ respectively, coupled with the Court's summary affirmance in DeWitt v. Wilson . ⁹ That body of precedent has crystalized further with the Court's decisions in Abrams v. Johnson ¹⁰ and Lawyer v. Department of Justice, ¹¹ handed down at the end of the 1997 term. While much of this constitutional precedent clarifying the race-predominant standard for redistricting is held together by a fragile five-four majority, state and local government entities can nonetheless find a principled set of constitutional guidelines as they approach the daunting task of redistricting and reapportionment resulting from population and demographic changes shown by the next decennial census. ¹²

This article will address the Supreme Court's post- Shaw racial gerrymandering decisions as well as those cases which are still reverberating in the District Courts and Courts of Appeal, many of which are still "fleshing out" such critical sub-issues as

• the nature and role of legislative intent and legislative history in the redistricting process ¹³
• the impact and justification for racial splits in political subdivisions ¹⁴
• the role of shape (bizarre or otherwise) and other traditional districting principles and criteria in the redistricting process ¹⁵
• identification and proof of compelling state interests which may or may not justify a reapportionment or redistricting plan ¹⁶
• the analytical process by which a court determines that a district drawn predominantly on the basis of race is or is not narrowly tailored to satisfy that compelling state interest; ¹⁷ and,
• the extent to which race may be utilized in defining a "community of interest" for purposes of developing a redistricting plan. ¹⁸

Racism cannot be grounded on any high moral principle. For this reason democracy will not tolerate it, especially racism in its institutionalized form. ¹⁹ Our system of democracy could not tolerate the racial injustice of slavery any more than democracy today can tolerate the racial apartheid, resegregation of minority and white voters and racial Rorschachism ²⁰ through the mechanism of Voting Rights Act litigation.

To be sure, race can and always will be a legitimate factor in any decision that involves line-drawing and constitutional allocation of power in a pluralistic and diverse society. ²¹ On the other hand, race cannot trump other legitimate, race-neutral factors, which in the redistricting context are well known and which include geographical compactness, contiguity, natural boundaries, preservation of communities of interest other than on a racial basis, and respect for political subdivisions.

Beginning with Shaw v. Reno , ²² the Supreme Court has "drawn the line" on line-drawing where the predominant motivating force is race. Indeed, there has been and remains a need for race-conscious efforts to make our public institutions more accountable, more accessible and more conducive of equal political opportunity and participation. Moreover, to the extent that a state or local government body chooses to engage in race-conscious redistricting, it may be able to do so through use of a more informed legislative process, and perhaps through judicious use of mediation and other means of Alternative Dispute Resolution, as demonstrated in the mediated redistricting settlement agreement which was the subject of Lawyer v. Department of Justice , supra . That process is one which entails clear identification of compelling governmental interests justifying creation of a race-conscious district, and, when viewed through the lens of Miller , ²³ Vera ²⁴ and Shaw II , ²⁵ provides the necessary safeguards to assure that the district is narrowly tailored to achieve such compelling governmental interests. Lawyer , decided on the last day of the 1997 term, demonstrates that a district can be so narrowly tailored, that it can achieve a compelling governmental interest and that the United States Supreme Court will approve such districts under strict scrutiny.

At a minimum, this legislative process is one which should be developed in view of the fact that the entire legislative history may become "Exhibit A" in the event a subsequent racial gerrymandering challenge or an action under 2 or 5 of the Voting Rights Act is mounted. ²⁶ Relevant legislative evidence, at a minimum, should include the following with regard to the configuration and boundaries of a district, be it state, county, municipal or special district:

• Any narrative statements, exhibits or evidentiary materials submitted to the Section 5 Unit of the Civil Rights Division of the Justice Department, for covered jurisdictions, over the period of at least the preceding decade;
• Correspondence to and from the Attorney General of the United States and the Voting Section attorneys during that same relevant time period, including informal telephone memoranda and summaries of contacts;
• Express reference to traditional race-neutral criteria and standards such as compactness, contiguity, respect for political subdivision boundaries and preservation of non-racial communities of interest in the redistricting process;
• Relevant newspaper articles, television interviews and other forms of recorded media coverage, whether on the national, state or local level, that identify or describe the principal goal and objective of the redistricting process, the balanced use of race along with other non-racial factors in making boundary line changes, and other public expressions of legislative purpose bearing on the issue of whether and to what extent race predominated or was merely one of many factors in the drawing of boundaries of a given district.

In Shaw v. Reno , the Court addressed the inevitable tension between the Voting Rights Act and the Fourteenth Amendment, a tension that had mounted during the preceding decade of VRA litigation, rendering state and local government entities potentially liable under either 2 or 5, or both, for failing to create majority-minority districts whenever racial bloc voting existed, unless the creation of such districts would amount to maximization of minority voting strength. Prior to Shaw , state and local government entities often sought to minimize exposure to that liability by relying on computerized census data and maps that took race into account in determining where to draw boundary lines in redistricting plans. Such computerized census data was necessarily used to avoid retrogression ²⁸ and in order to avoid impermissible fragmentation of compact and cohesive minority population concentrations. Failure of a state or local government entity to draw a majority-minority district gave rise to substantial liability exposure, even if such district-manipulation had to be undertaken at the expense of dividing cities, counties, precincts or other recognized and traditional political subdivision boundaries. ²⁹ Likewise, state and local government entities would likely be exposed to liability if a majority-minority district was not drawn in order to protect an incumbent. ³⁰ By using computerized census data showing the racial breakdown of the population, or by using census maps that show the location of minority population concentrations, state and local government entities thereby generated evidence that race was the predominant factor in the redistricting plan. ³¹ By dividing municipalities, counties or precincts in order to avoid fragmentation of minority population concentrations, a state or local government entity thereby generated evidence that it had subordinated "traditional districting principles" to race. ³² By failing to protect an incumbent when it drew a majority-minority district, the state or local government entity thereby generated evidence that traditional districting principles had been subordinated to race. ³³
 

In her concurring opinion in Vera v. Bush , Justice Sandra Day O'Connor recognized that the process of reconciling the VRA's requirements with those of the Equal Protection Clause "sometimes requires difficult exercises of judgment." ³⁴ Justice O'Connor's guidance for state and local government entities was outlined in the following manner:
 

• First, as long as states do not subordinate traditional criteria to race, they may intentionally create majority-minority districts without coming under strict scrutiny.
• Second, a state may have to create majority-minority districts where the three Gingles preconditions (reasonable compactness, minority cohesion, and white bloc voting) are satisfied.
• Third, the state's interest in avoiding Section 2 liability is a compelling governmental interest.
• Fourth, a district drawn to avoid Section 2 liability is narrowly tailored so long as it does no deviate substantially, for predominantly racial reasons, from the sort of district a court would draw to remedy a Section 2 violation.
• Fifth, districts that are bizarrely shaped and non-compact and that otherwise neglect traditional principles and deviate substantially from the sort of district a court would draw are unconstitutional, if drawn for predominantly racial reasons. ³⁵

Justice O'Connor's guidelines in Vera , however, do not answer the question, first raised in Shaw v. Reno , of whether a district is necessarily unconstitutional if it looks "ugly" or if it does not measure up to certain concepts of geographical compactness, whether "functional compactness" as approved in DeWitt v. Wilson , 856 F. Supp. 1409, 1414, or compactness determined through a mathematical measure, as described in R. Pildes and R. Niemi, Expressive Harms, "Bizarre Districts" and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno , 92 Mich. L. Rev. 483, 554-56 (1993).
 

Direct and circumstantial evidence of race-predominance was recently considered in racial gerrymandering challenges to congressional districts in cases arising in Virginia and New York. In Moon v. Meadows , ³⁷ the Court held that the Third Congressional District of the Commonwealth of Virginia was unconstitutionally racially gerrymandered. The district in its present configuration was "an amalgamation principally of African-American citizens contained within the legislatively determined boundaries for the obvious purpose of establishing a safe black district." Id . at 1144. The evidence was overwhelming, according to the Court, that the creation of a safe black district predominated in the drawing of the boundaries of this congressional district.

[T]he district...slices through the City of Hopewell, including only those areas where blacks predominate, before terminating some 30 miles away in the City of Petersburg, which it also divides racially. To the east, the District takes in part of rural southeastern Henrico County before reaching the more built up and heavily black eastern suburbs of Richmond, racially dividing the capital city nearly in half before terminating in a small black neighborhood in northern Henrico County. Id .

New York's Twelfth Congressional District was declared unconstitutional in Diaz v. Silver ³⁹ . Race was found to be the predominant factor in creating the district, and the DOJ's maximization interpretation of the Voting Rights Act was once again the culprit. The district plan segregated voters by race and subordinated incumbency protection to race. The plan was found not to be narrowly tailored to meet an arguably compelling interest in complying with 5 or 2 of the Voting Rights Act, and the district also flunked Gingles geographical compactness precondition. ⁴⁰ The Court then concluded:

Prior to the 1992 redistricting, there were five majority-minority districts. Without the 12th CD, the 1992 plan had six such districts; thus there would have been no retrogression and no dilution - although a second Latino district, rather than a fifth African-American district, might have been required. Moreover, alternative districting plans that assure minority representation and non-retrogression and which avoid race-based districting are readily available and feasible.

Furthermore, assuming that compliance with Section 2 for Section 5 of the Voting Rights Act is a compelling state interest, the challenged districts were not narrowly tailored to remedy any potential Section 2 violation or to avoid retrogression as prohibited by Section 5. Thus, these electoral districts violate the Equal Protection Clause of the Fourteenth Amendment. Id . at 1211.

• direct evidence of a legislative intent to draw "safe" majority-minority districts under a "dream plan,"
• the lack of any analysis of traditional race-neutral principles such as compactness, communities of interest or contiguity,
• legislators' admissions that race was the only factor for drawing the lines
• coupled with the insistence on minimum racial percentages in certain districts.

The Court was critical of South Carolina's abandonment of normal redistricting principles in order to draw majority-minority districts and the state's evident assumption that "black population was considered to be fungible." Id . at 1207.

If a district needed more black citizens to reach the goal of fifty-five percent BVAP, it mattered little where they came from. This is the very evil condemned in Shaw , Miller and Bush . The state may not assume that all members of a race think alike, have the same interest, or support the same political candidates. Id .
 

Following the Supreme Court's decision to vacate and remand the original three-judge panel decision that declared Louisiana's congressional redistricting scheme to be an unconstitutional racial gerrymander, ⁴¹ the three-judge Court was confronted with a new redistricting plan designed by the Louisiana legislature. That new plan, according to the Court, also constituted a racial gerrymander, which the Court describes as "racial rorschachism," in violation of the Equal Protection. ⁴² Citing both circumstantial and direct evidence of race predominance and legislative disregard for and subordination of traditional race- neutral districting principles such as compactness, respect for commonality of interests and respect for political subdivisions, the Court was critical of the cartographer in creating a new design for the challenged congressional district, noting that he "concentrated virtually exclusively on racial demographics and considered essentially no other factor except the ubiquitous constitutional one person-one vote requirement." ⁴³ The three race-neutral explanations proffered by the defense were deemed "weak", these being (1) that the boundaries were intended to coincide with the lines of Louisiana's "old eighth" congressional district, (2) that the district was designed to follow the Red River and (3) that the district was actually majority-poor rather than majority-black. The latter two explanations were rejected as "patently post-hoc rationalizations," and the first explanation"equally spurious, albeit slightly less obvious," including a concession by the cartographer "that the old eighth itself was used as a guise for amassing a large percentage of minority voters into one district, not as a means of following traditional district boundaries." ⁴⁴

The Louisiana legislature was chastised for persisting in "defending the indefensible," and "doggedly clinging to an obviously unconstitutional plan," leaving the Court with "no basis for believing that, given yet another chance, it would produce a constitutional plan." The three-judge court accordingly directed the State of Louisiana to implement a redistricting plan drawn by the Court and ordered implemented in Hays II . ⁴⁵
 

In their recent comprehensive work in race relations and the status of African-Americans, Stephan and Abigail Thernstrom devoted one of the chapters of America in Black and White: One Nation, Indivisible (Simon & Schuster 1997), to Voting Rights. In a section of that chapter entitled "Reluctant Swimmers in the Biracial Waters," the Thernstroms describe how Cynthia McKinney was re-elected in a newly configured 65% majority white Twelfth Congressional District of Georgia in 1996, yet black voters, following the "drumbeat of self-defeating pessimism" ⁴⁶ returned to the United States Supreme Court after Miller v. Johnson to urge restoration of one of the two invalidated majority black districts. "In winning handily in majority-white constituencies in that Deep South state, Cynthia McKinney and Sanford Bishop had made history; in insisting that they were still in need of electoral arrangements that protected black candidates from white competition, McKinney and Bishop were (in effect) asking the Court to ignore those significant victories. They had remained reluctant swimmers in the biracial waters that just a month earlier had proven so hospitable to them." ⁴⁷

In Abrams v. Johnson , ___ U.S. ____, 1997 U.S. Lexis 4034 (June 25, 1997), the United States Supreme Court rejected constitutional challenges to a redistricting plan for Georgia's congressional delegation drawn by the District Court after the Georgia Legislature could not reach agreement on drawing a new plan, following remand in Miller v. Johnson . Appellants, various minority organizations and the United States, challenged the District Court's redistricting plan on several grounds, all of which were rejected by the Supreme Court.

Appellants in Abrams argued that the court-ordered plan contravened 2 of the Voting Rights Act, a position which the Supreme Court rejected as based on the premise the impermissible vote dilution resulted from the failure to create a second majority-black district. The 2 findings of the District Court were entitled to deference, including its findings that the black population was not sufficiently compact for a second majority-black district, as well as its findings that minority political cohesion and white racial bloc voting had not been established in light of evidence of significant white crossover voting. The District Court's findings were upheld by the Supreme Court, which noted that the minority group failed to meet the Gingles preconditions, and the mere fact that the District Court did not hold a separate hearing on whether the remedial plan violated 2 did not alter that result. In affirming the District Court's judgment, the Supreme Court concluded:

The task of redistricting is best left to state legislatures, elected by the people and as capable as the courts, if not more so, in balancing the myriad factors and traditions in legitimate districting policies. Here, the legislative process was first distorted and then unable to reach a solution. The district court was left to embark on a delicate task with limited legislative guidance. The court was careful to take into account traditional state districting factors, and it remained sensitive to the constitutional requirement of equal protection of the law.

In the tumult and upheaval that followed in the wake of Shaw v. Reno and a half-dozen voting rights decisions handed down by the United States Supreme Court after 1993, at least two courts, one a district court and the other a court of appeals, have made a somewhat graceful "about face" in their evaluation of at-large electoral systems on the local government basis and the weight to be accorded minority electoral success.

In Uno v. City of Holyoke , ⁴⁸ the District Court had initially declared the City's electoral system violative of 2 of the Voting Rights Act, but after reversal and remand by the First Circuit, ⁴⁹ the District Court considered supplemental electoral evidence of minority access and participation, and held that the at-large election system for the City Council did not violate 2 of the VRA.

In its second substantive review and analysis of the City of Holyoke's electoral system, the District Court acknowledged that applying the Voting Rights Act to a particular political context "is one of the most difficult and intricate responsibilities a District Court must shoulder," and likened its task to "attempting to write on water" and "performing heart surgery with a butter knife." 960 F. Supp. at 518. While the first two Gingles preconditions of geographical compactness and minority political cohesion were found to be sufficiently proven, the District Court held that the balance of proof on the third Gingles precondition of legally significant white racial bloc voting "was sufficiently precarious to tip the other way when the new evidence on remand was placed on the scales." Id . at 524. The record included evidence that a neophyte minority candidate dealing with a low Hispanic turnout enjoyed a 42% crossover vote from non-Hispanic voters, was the first choice among Hispanic voters and received over 80% of his total votes from non-Hispanics. This led the Court to conclude that "racially polarized voting was not the cause of his loss," and that this minority candidate "or any energetic, qualified Hispanic candidate has a fair opportunity to run in 1997." The Court acknowledged that while the success of a single minority-preferred candidate by itself is not dispositive, "it is the evidence revealed by the election, not just the result, that weighs most strongly in the court's analysis," election which in this case proved that "very large numbers of non-Hispanic voters in Holyoke are quite willing to support an attractive, energetic Hispanic candidate." Id . at 525.

Analyzing the totality of the circumstances, the Court noted that in the two years since its initial opinion, there had been "some evolution in the evidence bearing on the mix of factors enumerated in the Senate report on the Voting Rights Act under the ruberick of the totality of the circumstances." Id . The "near miss" by the Hispanic candidate in the 1995 at-large City Council race "provided as clear a test of the fairness of the Holyoke election system" as perhaps any in the city's history. This led the Court to find that in the current political reality of the City Hispanic citizens were not being denied "meaningful access to the political system on account of race." It concluded with this strong affirmation of the City's maturing political structure:

This Court has no illusions about what one writer has called "the lumpish, Jabba-the-Hutt immobility of racial prejudice in this country."

Certainly it exists in Holyoke as elsewhere. Equally certainly, however, it is much less a factor now than in the past, at least in Holyoke's political life. Some percentage of non-Hispanic white voters will continue to oppose a candidate based merely on his or her ethnicity or surname, but many others are receptive to Hispanic candidates and willing to support them. This is good news for our democracy. Id . at 527.

Plaintiffs are to present evidence of racial bias operating in the electoral system by proving up the Gingles factors. Defendants may then rebut the Plaintiffs' evidence by showing that no such bias exists in the relevant voting community. The District Court betrays its misunderstanding of this burden-shifting when it concludes that "factors other than race influence voters in Attala County, and, therefore, Plaintiff has filed to prove racial polarization" on the basis of there being "no proof in the record that in any way compares the candidates on any base other than race." Such a showing is for the Defendants to make. This lack of evidence in the record on this point favors the Plaintiffs, not the Defendants. By the District Court's own reasoning, then, the Plaintiffs have prevailed in demonstrating racial bloc voting.

The Fifth Circuit's holding that the results of a single statistical analysis of racially polarized voting created "a strong presumption in favor of finding of black political cohesion and racial bloc voting," was followed by that Court effectively collapsing the "totality of circumstances" inquiry, which is a multi-factor analysis, into a single-factor analysis of whether the Plaintiffs' experts had offered statistical evidence of racially polarized voting. This holding conflicts with Lewis v. Alamance County , 99 F.3d 600 (4 ^th Cir. 1996), cert. denied , 65 U.S.L.W. 3766 (U.S. May 19, 1997), wherein the Fourth Circuit held that even if the Plaintiffs proved the Gingles preconditions, "the ultimate determination of vote dilution under the Voting Rights Act still must be made on the basis of the totality of the circumstances." Id. at 604.
 

Dillard v. City of Greensboro ⁵⁵ demonstrates what may well be the outer limits of permissible race-conscious remedial redistricting, ostensibly based on one court's unusual and startling interpretation of Shaw II , Vera and Miller . The City of Greensboro pursuant to a 1987 consent decree had conceded that its at-large system violated 2 of the Voting Rights Act, and the District Court in response to a 2 challenge to the city's at-large system issued an injunction requiring that the city use the 2 plaintiffs' proposed redistricting plan. The Eleventh Circuit vacated the injunction and remanded the case. The District Court then drew on current racial gerrymandering precedent and required certain legal standards and criteria to be used by a special master in drawing up a districting plan for the city, including the following constitutional constraints that the Court felt would "completely and with certitude cure the 2 violation." ⁵⁶

(1) Traditional districting criteria cannot be subordinated to the use of race for its own sake or as a proxy, but majority-African American districts may be intentionally created and race taken into consideration without coming under strict scrutiny, a "delicate task" which can be accomplished only by developing a plan narrowly tailored to achieve a compelling state interest, which in turn could be shown by a sufficient evidentiary basis to establish that the plan is narrowly tailored to remedy that past discrimination.

(2) The state interest in avoiding 2 liability is compelling.

(3) The proposed redistricting plan would be deemed narrowly tailored if a compelling interest is pursued by creating a district that substantially addresses the 2 liability and does not deviate substantially from a hypothetical 2 district for predominately racial reasons.

(4) The plan is not required to have the least possible amount of irregularity and shape, making allowances for traditional districting criteria, but need only be reasonably compact and regular, taking into account such traditional districting principals as maintaining communities of interest and traditional boundaries, a limited leeway for the special master.

The District Court in Dillard also directed that the special master follow a three-stage procedure "in an effort to comply with both the letter and spirit of recent holdings from the Supreme Court" in Miller , Shaw and Bush .

Stage One : First, the electoral districts must comply with the one-person-one-vote principal of the equal protection clause, with not more than a total ten percent population variation.

Stage Two : Second, the redistricting plan must take into consideration the "traditional race-neutral districting principles," including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests. In doing so, the Court noted that it should "canvass state law, practice and custom for other traditional race-neutral principles," which in the State of Alabama included having district boundary lines follow the center lines of streets or other well-defined boundaries. ⁵⁷

In "Stage Two" of this process, if race must be employed as a factor in the actual fashioning of the plan, the special master "may do so, but he should attempt to see if a plan can be drawn in which race is not the dominant factor." Id. at 955. ⁵⁸

Stage Three : In "Stage Three" of the process, again deviating from Bush , the Court stated:

If in order to cure the 2 violation the special master must not only consider race but give it dominant consideration, the special master's plan must be narrowly tailored to cure the 2 violation. Id . at 955.

The Court seemed to weaken the concept of strict scrutiny, noting that its plan must be narrowly tailored to achieve a compelling state interest; thus, if the special master pursues a compelling interest by creating a district that substantially addresses the 2 liability and does not deviate substantially from a hypothetical 2 district for predominately racial reasons, such a districting plan would be deemed narrowly tailored. As the District Court itself acknowledged, "at first blush, it might appear that the strict scrutiny concept is without real substance." The Court continued:

This would be true if strict scrutiny's narrow-tailoring requirement were equated to the requirement that a plan comply with, and not subordinate to race, all traditional race-neutral principles, for then the requirement that the plan fails to meet in triggering strict scrutiny (that the plan comply with all traditional race-neutral principles) would be the same as the requirement needed to satisfy that scrutiny (narrow tailoring). Id . at 956. ⁵⁹

Two recent cases from the Eighth and Eleventh Circuits point to a sharp conflict over the extent of a federal court's remedial power to impose a constitutional districting plan comprised of one or more gerrymandered districts. In Askew v. City of Rome , ⁶¹ the City of Rome, Georgia, withstood a Section 2 attack on its at-large method of electing City Commissioners and its Board of Education. Even though the Court ruled in favor of the City, it specifically rejected the City's argument that Shaw v. Reno and its progeny had any impact on or practical relevance to the case. The Court first noted that Shaw v. Reno , Shaw v. Hunt and Bush v. Vera established that strict scrutiny must be applied "whenever racial considerations predominate over traditional districting principles in a state's districting scheme." The Court nonetheless concluded that Shaw and its progeny did not limit a federal court's power and ability to fashion a remedial constitutional districting plan. According to the Court, even if the holding in Shaw and its progeny

theoretically places new limits on this court's ability to impose a remedial plan in this case and assuming upon further consideration the Court determines that a remedial plan cannot be imposed in this case that is entirely consistent with the traditional race-neutral districting principles, the Court concludes, nonetheless, that the Court could fashion a constitutional districting plan in this case. This is so because eliminating violations of Section 2 is a compelling state interest. Even under this modified Shaw framework, therefore, the Court's only requirement will be to narrowly tailor its remedy to the goal of eliminating a Section 2 violation. Even in the absence of Shaw and its progeny, the Court would have labored to eliminate both vote dilution in the manner that least disrupted Rome's chosen electoral system and its districting principles.

The Eighth Circuit upheld the District Court in its holding that the proposed districting plans for the school board were not workable remedies to the challenged practices, and that Plaintiffs failed to prove that Native Americans were geographically compact to form an effective voting majority in a single-member district. According to the Eighth Circuit, the District Court's rejection of the proposed school board redistricting plans was justified by reason of the fragile composition of those proposed districts

under the proposed plans, if four or five Native Americans moved from the proposed majority-minority districts created for the school board...and they were replaced by non-Native Americans, the majority -minority composition would be destroyed.

Any remedy drawn in order to correct a Section 2 violation should steer clear of the type of racial gerrymandering proscribed in Miller.... The bizarre shape of the proposed districts, considered in combination with the racial and population densities of the proposed districts, support the district court's finding that race was the predominant factor in drawing the proposed districts to create a majority-minority single-member district and that the proposed redistricting resulted in gerrymandered districts.... Even assuming, without deciding, that compliance with Section 2 can be a compelling state interest, in the present case, there is no strong basis in evidence to conclude that vote dilution, in violation of Section 2, would occur in consequence of the challenged districting plans because none of the three Gingles factors, the threshold findings for a vote dilution claim, have been established. Id ., Slip Op. at 8 (internal citations and quotation marks omitted).

Because Plaintiffs failed to establish a Section 2 violation, the proposed gerrymandered districts cannot survive strict scrutiny. Id ., Slip Op. at 8.
 

Today the combined forces of the Department of Justice and the once indominantable VRA Plaintiffs' bar are often consumed, not with a maximization agenda to create majority-minority districts wherever computerized Tiger files might suggest, but with defending those products of the last decade of race-predominant redistricting. Moreover, these same erstwhile activists in their public statements about racial progress in the political and electoral arena have followed an almost incessant drumbeat of pessimism in the wake of Shaw and Miller :

• minority members of Congress "could meet in the backseat of a taxicab" according to Theodore Shaw of the NAACP Legal Defense and Education Fund. ⁶⁴
• The structure of civil rights is being dismantled, resulting in a "return to the days of all-white government," according to ACLU Voting Rights Specialist Laughlin McDonald. ⁶⁵
• "The Voting Rights Act may be finished," according to University of Virginia Law School Professor Pam Karlan. ⁶⁶
• The Supreme Court has turned "the intent and meaning of the Fourteenth Amendment on its head." ⁶⁷

(1) In Georgia, after Congresswoman Cynthia McKinney's 12 ^th District was redrawn following Miller , McKinney complained of impending "extinction," but was reelected with a solid crossover vote from white voters in her 65% white district. ⁷⁰

(2) Georgia Congressman Sanford Bishop ran and won in a 35% black district. ⁷¹

(3) In Texas, Sheila Jackson Lee and Eddie Bernice Johnson were both elected to Congress from majority white districts. ⁷²

(4) In Indiana, black Democrat Julia Carson was elected to Congress from a 69% white district. ⁷³

(5) In Oklahoma, Congressman J. C. Watts, a black Republican, was elected from an overwhelmingly white district, and before him, Andrew Young, Allan Wheat, Ron Dellums, Harold Ford and Gary Franks were elected to the House of Representatives from majority-white districts. ⁷⁴

(6) Illinois Senator Carol Moseley-Braun and Virginia Governor Douglas Wilder were both elected from majority white state electorates. ⁷⁵

(7) Mississippi has witnessed the election of Reuben Anderson and Fred Banks to the state Supreme Court, both receiving substantial support from white voters. ⁷⁶

None of this is to say that race relations in the United States of America are at an all-time high. ⁷⁷ But we are forthrightly confronting and constructively addressing race relations in a manner and with a tone that has no precedent in the bumper sticker society of the 1970's and 1980's. It seems like only yesterday that we were witnesses to the Oakland School District's proposal to confer serious linguistic value upon Ebonics, ⁷⁸ only to hear critics slam it as "dumbing down" education by giving legitimate status to street slang. ⁷⁹ It seems like just a short while ago that the streets of south central Los Angeles were a war zone in the wake of the state court acquittals of Rodney King's assailants by a suburban predominantly white jury, ⁸⁰ only to be followed by what many deemed race-based jury nullification in the O. J. Simpson acquittal. ⁸¹

It seems like President Clinton's newly-appointed Race Advisory Council had barely let the ink dry on their Letters of Appointment, when the Council's chairman, John Hope Franklin, was reminding us at the Council's opening meeting that America had "cut its eyeteeth" on black-white problems, in response to which Council member Angela Oh urged the Council to look beyond black-white tensions and "go beyond the black-white paradigm" since "the world is about much more than that." ⁸²

According to a recent report of the National Academy of Sciences, America fifty years from now may well be a nation in which

• one out of five citizens will have a racially mixed ethnic background;
• no more than 51% of the country will be white;
• the largest minority will be Hispanics, who will outnumber African-Americans by almost 2 to 1; and,
• 8% will be of Asian descent. ⁸³

Far from the "ethnic cleansing" predicted by Reverend Jesse Jackson following Bush v. Vera , ⁸⁶ the proven results of even-handed application of the race-predominant standard for redistricting are racially fair, balanced and representative electoral districts, from the halls of Congress to the county courthouse to city hall.

* * * * * * * * * * *

Benjamin E. Griffith is a partner in the Cleveland, Mississippi, firm of Griffith & Griffith, and has served as Board Attorney for the Bolivar County Board of Supervisors since 1983. He is Chair of the Election Law Subcommittee and Vice-Chair of the Government Operations & Liability Committee of the State and Local Government Law Section of the America Bar Association, and has served as President of the Mississippi Association of County Board Attorneys, Chairman of The Mississippi Bar's Government Law Section and President of the National Association of County Civil Attorneys. He received his J.D. from the University Mississippi Law Center in 1975 and his B.A. from the University of Mississippi in 1973. Mr. Griffith's practice emphasizes state and federal civil litigation, particularly in the area of litigation and administrative proceedings under the Voting Rights Act.
 

1.    Stephan Thernstrom and Abigail Thernstrom, America in Black and White: One Nation, Indivisible 490 (Simon & Schuster 1997)(cited hereinafter as "Thernstrom").

2.     Holder v. Hall , 114 S.Ct. 2581, 2598 (1994)("Worse still, it is not only the courts that have taken up this project. In response to judicial decisions and the promptings of the Justice Department, the states themselves, in an attempt to avoid costly and disruptive Voting Rights Act litigation, have begun to gerrymander electoral districts according to race. That practice now promises to embroil the courts in a lengthy process of attempting to undo, or at least to minimize, the damage wrought by the system we have created." Id .). See also NAACP v. City of Niagara Falls , 65 F.3d 1002, 1016 (2 ^nd Cir. 1995)(Judge Cabranes described this segregated political system as "electoral apartheid.").

3.     See Coalition for Economic Equity v. Wilson , 946 F. Supp. 1480, 1500 (N.D. Cal. 1996)(The state may not "allocate governmental power non-neutrally by explicitly using the racial nature of a decision to determine the decision-making process."), citing Washington v. Seattle School Dist. No. 1 , 458 U.S. 457, 470, 102 S.Ct. 3187, 3195, 73 L.Ed. 2d 896 (1982).

4.     Shaw v. Reno , 509 U.S. 630 (1993). Thirty years before Shaw , Justice William O. Douglas had given this warning about injecting racial stereotypes into our system of representative democracy.

5.    Thernstrom at 478-79.

6.     Miller v. Johnson , 115 S.Ct. 2475 (1995). See generally B. Griffith, Proactive Defense Strategies in Voting Rights Litigation After Miller v. Johnson , 65 Miss. L.J. 315 (1995).

7.     Bush v. Vera , 116 S.Ct. 1941 (1996).

8.     Shaw v. Hunt , 116 S.Ct. 1894 (1996)( Shaw II ).

9.     DeWitt v. Wilson , infra .

10.    ___ U.S. ___, 65 U.S.L.W. 4478 (June 19, 1997).

11.    ___ U.S. ___, 65 U.S.L.W. 4629 (June 25, 1997).

12.     See J. Berrien, All Politics Are Local: The Extension of Shaw v. Reno to Local Election Systems 1, 14-17, Voting Rights Review (Southern Regional Council Voting Rights Program, Summer 1997)(noting that Shaw claims "are increasingly commonplace at the state and local level," id . at 14, but that "judicial embrace of the Shaw theory has been a bit less zealous at the state and local level than at the Congressional level." Id .)[hereinafter cited as "Voting Rights Review"].

13.     See, e.g., Johnson v. Miller , 864 F. Supp. 1354, 1371 (S.D. Ga. 1994)(noting "some debate over the necessary prominence of race in legislative deliberations" before a redistricting plan is subject to strict scrutiny); Moon v. Meadows , 952 F. Supp. 1141, 1148 (E.D. Va. 1997)(a member of Virginia's Senate and House Committees on privileges and elections was quoted as stating, in regard to a plan to create a majority-minority district, "a 66% plan does impact all the citizens of Virginia because, to reach that 66% plan, you can gerrymander to your heart's content and thus distort communities of interest throughout Virginia." In light of this and other legislative evidence reflecting on the predominance of race in creating the Third Congressional District, the Court concluded: "It was inevitable that race would have been a consideration in the mind of the Legislature during the redistricting process." Id .); Hays v. State , 936 F. Supp. 360, 368 (W.D. La. 1996)(The Court noted that legislators in enacting a plan containing a second majority-minority district "disregarded and subsequently subordinated traditional race-neutral districting principles" and that "even contiguity was honored only by cynical formalism." Id . at 368. The Court also found that the testimony of numerous legislators and other evidence in the record provided ample direct evidence of the predominance of race alone in the design of the Fourth Congressional District, stating "the Legislature was justifiably convinced that the United States Department of Justice would preclear no redistricting plan for Louisiana that failed to include a second majority-minority district. Accordingly, by the legislators' own admissions, Act I was passed for the very reason that it was effective in separating black voters from whites." Id .).

14.     Moon v. Meadows , 952 F. Supp. 1141 (E.D. Va. 1997), appeal filed , 65 U.S.L.W. 3844 (May 29, 1997) (one of the questions presented is whether the district court in invalidating Virginia's Third Congressional District under the race-predominant standard ignored evidence that the district's configuration was the product of such traditional districting principles as partisan considerations, incumbency protection and the state's "unique and long-standing policy of splitting (the) Tidewater area among several congressional districts").

15.     Lawyer v. Department of Justice , ___ U.S. ___, 1997 U.S. Lexis 4034 (June 25, 1997) at *5 (upholding the district court's finding that race did not predominate over the State of Florida's traditional districting principles in drawing a remedial districting plan proposed in a settlement agreement, court noting that Senate District 21's shape and composition were found to be "demonstrably benign and satisfactorily tidy," and "is located entirely in the Tampa Bay area, has an end-to-end distance no greater than that of most Florida Senate Districts, and in shape does not stand out as different from numerous other Florida House and Senate Districts," with physical features and common characteristics attributable to the State's geography); Reed v. Town of Babylon , 914 F. Supp. 843, 872-73 (E.D. N.Y. 1996)(convoluted majority-minority district with narrow corridors connecting pockets of minorities sprawled across the town precluded compliance with § 2's precondition of geographical compactness).

16.     Diaz v. Silver , ___ F. Supp. ___ (E.D. N.Y. February 26, 1997), appeal filed , 66 U.S.L.W. 3047 (April 21, 1997)(legal justification for creation of New York's Hispanic-majority Twelfth Congressional District is found lacking where the state's creation of seven majority-minority districts exceeded the six that were needed to avoid retrogression).

17.     Dillard v. City of Greensboro , 946 F. Supp. 946, 953-56 (M.D. Ala. 1996)(delineating a three-stage procedure for drawing a remedial redistricting plan in compliance with strict scrutiny's narrow-tailoring requirement, court noting that "with the exception of Section 2's requirement of compactness, traditional race-neutral principles can be subordinated or even sacrificed in favor of race considerations to the extent necessary to remedy the Section 2 violation.").

18.     Smith v. Beasley , 946 F. Supp. 1174, 1194 (D. S.C. 1996)("The boundaries of District 12 do not comply with traditional districting principles. The district is not compact; it does not respect county lines, city lines, or precinct lines; and it does not recognize any distinct communities of interest, other than race, among its residents. Therefore, this Court finds that race was the predominant factor in the drawing of District 12."); Goosby v. Town Board of the Town of Hempstead , 956 F. Supp. 326, 349 (E.D. N.Y. 1997)(rejecting the characterization of proposed district boundary changes as effort to "scoop up more black citizens"); Dillard v. City of Greensboro , 946 F. Supp. 946, 955 (M.D. Ala. 1996)("It would be expected that community boundaries and interests would be strongly influenced, if not defined, by race considerations, because racial considerations, in fact, influenced and defined community boundaries and interests.")

19.    Jim Sleeper, Liberal Racism 176 (Viking/Penguin Group 1997)("Liberals are rightly suspicious of conservatives who assail multiculturalism in the name of a transracial America they did precious little to open to blacks, but that suspicion cannot justify liberals' fatalistic acceptance of the racialist shams in our classrooms, courtrooms, workplaces and election districts."); Thernstrom at 29-32 (tracing development of Title VII concept of "disparate impact" and its purported protection of blacks against institutionalized racism).

20.     Hays v. State of Louisiana , 936 F. Supp. 360, 370 (W.D. La. 1996)(noting that one of the reasons why the Louisiana congressional district 4 meandered for about 250 miles northwest to southeast, dividing political subdivisions while "surgically agglomerating pockets of minority populations along the way," was that the black population of the state outside of New Orleans "is so widely and evenly dispersed that, to create a congressional district that meets the one person, one vote criterion and has even a simple majority black population, resort must be had to graphic design that constitutes racial Rorschach-ism.").

21.     See DeWitt v. Wilson , 856 F. Supp. 1409 (E.D. Cal. 1994), judgment aff'd in part and appeal dismissed in part , 63 U.S.L.W. 3917 (1995); Lawyer v. Department of Justice , ___ U.S. ___, 1997 U.S. Lexis 4034 (June 25, 1997)("[W]e have never suggested that the percentage of black residents in a district may not exceed the percentage of black residents in any of the counties from which the district is created, and have never recognized similar racial composition of different political districts as being necessary to avoid an inference of racial gerrymandering in any one of them. Since districting can be difficult, after all, just because racial composition varies from place to place, and counties and voting districts do not depend on common principles of size and location, facts about the one do not as such necessarily entail conclusions about the other." Slip Op. at 5.).

22.     Shaw v. Reno , supra .

23.     Miller v. Johnson , 115 S.Ct. 2475 (1995).

24.     Bush v. Vera , 116 S.Ct. 1941 (1996).

25.     Shaw v. Hunt , 116 S.Ct. 1894 (1996)( Shaw II ).

26.     Johnson v. Miller , 864 F. Supp. 1354, 1363-67 (S.D. Ga. 1994)(noting that statements of various legislative leaders "all reveal a legislature driven to satisfy the demands of DOJ, and contain no indication of efforts to suppress the black vote." Id . at 1363 n.7).

27.    The Geography of Race in Elections: Color-Blindness and Redistricting (ABA Presidential Showcase Program, ABA Section of Administrative Law and Regulatory Practice, August 3, 1997, San Francisco, CA).

28.     Beer v. United States , 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.629 (1976).

29.     Cane v. Worcester County , 35 F.3d 921 (4 ^th Cir. 1994), cert. denied , 115 S.Ct. 1097 (1995), on remand , 874 F. Supp. 687 (D. Md.), aff'd. , 1995 WL 360787 (4 ^th Cir. 1995), cert. denied , 116 S.Ct. 2546 (1996).

30.     Garza v. County of Los Angeles , 918 F.2d 763 (9 ^th Cir. 1990), cert. denied , 498 U.S. 1028 (1991).

31.     See, e.g., Vera , supra; Miller , supra; Diaz v. Silver , C.A. No. 95-CV-2591 (E.D. N.Y. Feb. 26, 1997), Slip Op. at 50-51.

32.     See Vera , supra .

33.     See Diaz v. Silver , supra .

34.     Vera v. Bush , 116 S.Ct. at 1970 (O'Connor, J., concurring).

35.     Vera v. Bush , 116 S.Ct. at 1969-70. Cf. Dillard v. City of Greensboro , 946 F. Supp. 946, 953-56 (N.D. Ala. 1996).

36.    The Fifth Circuit has now made it clear, in Clark v. Calhoun County , 88 F.3d 1393, 1402-08 (5 ^th Cir. 1996), that requiring a race-based remedy under 2 of the Voting Rights Act is consistent with Miller , Shaw II and Vera , and that

[t]aken together, these decisions establish a number of important propositions. First, race-based redistricting, even that done for remedial purposes, is subject to strict scrutiny. Second, compliance with 2 of the Voting Rights Act constitutes a compelling governmental interest. Third, the state must have a strong basis in evidence for concluding that the three Gingles preconditions exist in order to claim that its redistricting plan is reasonably necessary to comply with 2. Fourth, a tailored response to a found violation must use race at the expense of traditional political concerns no more than is reasonably necessary to remedy the wrong.

37.    952 F. Supp. 1141 (E.D. Va. 1997), pet. for cert. filed ., 65 U.S.L.W. 3788 (May 6, 1977).

38.    The Commonwealth of Virginia filed a Petition for Writ of Certiorari on May 6, 1997, in which the questions presented included whether the District Court erred in rejecting the Commonwealth's adopted hierarchy of districting principles when race was not given a quantitatively greater consideration in drawing the Third Congressional District than the Commonwealth's well-defined districting principles, and whether the District Court erroneously found lack of narrow tailoring by failing to give deference to the state legislature's race-conscious effort to remedy vote dilution. 65 U.S.L.W. 3788.

39.    ___ F. Supp. ___ (E.D. N.Y., February 26, 1997), appeal filed , 65 U.S.L.W. 3728, 66 U.S.L.W. 3047 (April 21, 1997).

40.    The Fifth Circuit recently held that the citizen voting age population of the group challenging an electoral process must be considered when evaluating 2 claims and in determining whether a minority group can satisfy the "geographical compactness" precondition, Campos v. City of Houston , ___ F.3d ___, 1997.CO5.204 (http://www. versuslaw.com), and rejected 2 plaintiffs' invitation to abandon examination of citizenship data as a factor for a vote dilution claim, even though "citizenship information is unavailable until several years after the release of general census data, which could hinder redistricting."

41.     See Hays v. Louisiana , 839 F. Supp. 1188 (W.D. La. 1993), vacated , ___ U.S. ___, 114 S.Ct. 2731, 129 L.Ed.2d 853 (1994); see also United States v. Hays , ___ U.S. ___, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995).

42.     Hays v. State of Louisiana , 936 F.Supp. 360, 370 (W.D. La. 1996).

43.    936 F. Supp. at 368.

44.     Id . at 369. The Louisiana Legislature was chastised for "doggedly clinging to an obviously unconstitutional plan," which left the Court with "no basis for believing that, given yet another chance, it would produce a constitutional plan." 936 F. Supp. at 372. The three-judge court accordingly directed the State of Louisiana to implement a redistricting plan drawn by the Court and ordered implemented in Hays II . Id . at 372.

45.     Hays v. The State of Louisiana , 862 F.Supp. 119 (1995).

46.    Thernstrom at 485.

47.    Thernstrom at 485-86.

48.    960 F.Supp. 515 (D. Mass. 1997).

49.     Uno v. Holyoke , 72 F.3d 973 (1 ^st Cir. 1995). See also Jenkins v. Manning , 116 F.3d 685 (3 ^rd Cir. 1997).

50.    92 F.3d 283 (5 ^th Cir. 1996), pet. for cert. filed , 65 U.S.L.W. 3741 (U.S. April 22, 1997).

51.    807 F. Supp. 392 (N.D. Miss. 1992).

52.    C.A. No. 1:91cv209-D-D (N.D. Miss. March 20, 1995).

53.     Johnson v. DeGrandy , 512 U.S. 997 (1994).

54.    In the County's Petition for Writ of Certiorari , the Fifth Circuit's decision was challenged as a dramatic and improper reduction of the burden of proof for Plaintiffs in 2 cases, since under the view adopted by the Fifth Circuit, 2 Plaintiffs need to introduce little more than statistical evidence of racially polarized voting to satisfy their burden of proof, and such statistical evidence will demonstrate both black political cohesion and white bloc voting, even if it is hotly disputed and even if Defendants introduce unrebutted evidence that differences in black and white voting behavior result from causes other than racial animosity or partisan differences.

55.    946 F.Supp 946 (M.D. Ala 1996).

56.     Bush v. Vera , 116 S.Ct. at 1969 (O'Connor, J, concurring).

57.    The Court gave this unique twist to Miller 's "race-neutral" districting principles:

Therefore, by use of the term traditional race-mutual principals, the Court should not be understood to require that the special master ignore the social, political, and historical conditions brought about by race that exist currently and as a result of social and historical conditions in the community and that are reflected in the neighborhoods, other natural boundaries, and the shared interest in the community. Rather, the applicable district principles should be viewed as race-neutral, and followed as such, in the sense that the principles themselves have no racial content or bias, and thus to the extent racial features surface in the plan fashioned by the special master they would do so because of corresponding racial conditions in the community, and not because of any racial bias in the districting principles themselves. In other words, the principles are race neutral because, although they may take note of and even reflect racial conditions, they are not racially biased themselves. Id. at 955.

The term predominant is therefore a relative term, in that whether something is predominant depends on its position in relation to that of other considered factors. The Court recognizes the determination of whether race is predominant or subordinate is easier said than done, but it must be done. Regrettably, in the meeting between 2 and the equal protection clause, "bright-line rules are not available."

59.    Further deviating from the Shaw , Miller , Shaw II and Bush precedent, the District Court stated:

It does not appear that the narrow tailoring requirement means that the plan must satisfy all traditional race-neutral principles.... In other words, with the exception of 2's requirement of compactness, traditional race-neutral principles can be subordinated or even sacrificed in favor of race considerations to the extent necessary to remedy the 2 violation.

61.    127 F.3d 1355 (11 ^th Cir. 1977).

62.    ___ F.3d ___ (8 ^th Cir. Dec. 1, 1997).

63.    126 F.3d 1038 (8 ^th Cir. 1997).

64.    Thernstrom at 482.

65.     Id .

66.     Id .

67.    L. Higginbotham, G. Clarick and M. David, Shaw v. Reno : Mirage of Good Intentions With Devastating Racial Consequences, 62 Fordham L. Rev. 1593, 1645 (1994).

68.    High Court Rules--Dismantling of Minority Districts to Continue, Southern Regional Council, http:\\www.src.wl.com\vrrsum1996_dismantling_nf.htm

69.    J. Sleeper, Liberal Racism at 52.

70.    J. Sleeper, Liberal Racism at 53; Thernstrom at 485-86.

71.    J. Sleeper, Liberal Racism at 53; Thernstrom at 482, 485-86.

72.    J. Sleeper, Liberal Racism at 53; Thernstrom at 482-83 ("These victorious candidates--African-American members of Congress who won where they couldn't possible win--attributed their success to the power of incumbency. But prior to the election, none had mentioned incumbency as an advantage, and indeed they were not incumbents in the redrawn districts in which they were forced to run. The constituencies that sent them back to the House were those that had been (allegedly) 'ethnically cleansed'").

73.    J. Sleeper, Liberal Racism at 53; Thernstrom at 482, 485.

74.    J. Sleeper, Liberal Racism at 54; Thernstrom at 485.

75.    J. Sleeper, Liberal Racism at 54; Thernstrom at 293-98, 308, 490 ("'Blacks,' Governor Wilder once said, 'cannot wait until there is a majority in a district or region to dream of running for office. [They] cannot isolate [themselves] in enclaves and retreat, leaving vast areas totally untapped and unchallenged.' Had [General Colin] Powell run for the Presidency, he would of course have tested Wilder's implicit confidence in the potential for white support. Successful black candidates in statewide races and other majority-white settings have, it is true, been few in number. But African-Americans cannot win contests they do not enter. And scholars who attempt to assess white willingness to support black candidacies cannot settle the question on the basis of elections in which no black candidate has been in the race. Or on the basis of contests in which the political views of African-American candidates have been at odds with the majority of voters in their districts...." Id . at 297.).

76.     Magnolia Bar Assn. v. Lee , 994 F.2d 1143 (5 ^th Cir.), cert. denied , 114 S.Ct. 555, 126 L.Ed.2d 456 (1993).

77.     See, e.g., Carl T. Rowan, The Coming Race War in America: A Wake-Up Call 282 (Little, Brown 1996) ("I must say honestly that I doubt there is any way to prevent bloody racial strife in America. So many hate groups are at large that a few of them are bound to try to make good on their threats to make parts of America, or all of it, the exclusive home of superior Aryan whites. Too much rage has built up in the minds of young blacks who are trapped in the corridors of resentment and hopelessness for me to assume that they will not strike out with fire power, especially if provoked."); Benjamin Schwarz, The Diversity Myth (The Atlantic Monthly, May 1995) ("Without the dominance that once dictated, however ethnocentrically, what it meant to be an American, who are left with only tolerance and pluralism to hold us together."); Elizabeth Wasserman, Mercury News Staff Writer, Will the Forces Divide U.S. Conquer? Melting Pot Seems Headed Toward Meltdown (October 23, 1996) ("In a nation once called an ethnic melting pot, there is growing opposition to immigration. In a society that dreamed of being colorblind, a majority of Americans now say race relations are poor.").

78.    Thernstrom at 364.

79.    A. Love, Black Psychologists Urged to Fight for Ebonics, p.5A, The Clarion Ledger (AP, August 10, 1997).

80.    Thernstrom at 269, 515 ("It was more organized than the sixties disorders, but the organization was the work of Blugs, Crips and other criminal gangs. The conflict was not a simple black-white affair, but rather a confused melee that involved not only African-Americans and Anglo-Whites but Koreans, Mexicans, and other Asian and Latino groups. Hispanic and Asian merchants, not whites, owned most of the businesses that were hit; more Hispanics than blacks were arrested during the turmoil, with many of them very recent immigrants." Id . at 513.).

81.    Thernstrom at 517-18.

82.    G. Scib, A New America Begins Its Quest for Racial Calm, The Wall Street Journal , A-16 (August 6, 1997).

83.    G. Scib, A New America Begins Its Quest for Racial Calm, The Wall Street Journal , A-16 (August 6, 1997)(data from report of National Academy of Sciences).

84.    Thernstrom at 539.

85.    Thernstrom at 539 ("Race-conscious policies make for more race-consciousness; they carry American society backward. We have a simple rule of thumb: that which brings the races together is good; that which divides us is bad. Of course, which policies have what effect is a matter of deed contention. To tear down affirmative action 'could start a race war that would make Bosnia look like a kindergarten party,' Arthur Fletcher, a former Assistant Secretary for Employment Standards, said in 1995.")

86.    J. Sleeper, Liberal Racism at 52.