Benjamin E. Griffith
Member, Litigation and Risk Management Section, IMLA
Chair, Election Law Subcommittee;
Co-Chair, Government Operations and Liability Committee
of State and Local Government Law Section, ABA;
Griffith and Griffith, Cleveland, Mississippi;
Board Attorney Bolivar County, Mississippi,
Board of Supervisors;
J.D.,University Mississippi Law Center, 1975;
B.A., University of Mississippi, 1973
 

I. Introduction
 

The Supreme Court once again has addressed the volatile mix of race and politics that punctuated its 1996 term, this time "clarifying" the relationship between the VRA's §5 preclearance provision that applies primarily to southern state and local jurisdictions and the Act's §2 vote dilution provision that applies nationwide.

As the post- Shaw v. Reno world of VRA litigation is beginning to crystalize, some district and appellate courts are doing their best to ameliorate the tension between the VRA and the 14 ^th Amendment. ⁽¹⁾ A number of recent decisions have also provided principled analyses of discrete §2 liability and remedy issues, §1988 fee issues, and the complex questions of the defensive role of racial bias and the extent to which its absence may be used in vote dilution litigation. Lower courts have also expressed a deep sense of frustration in their attempts to flesh out the myriad contours of the Miller - Shaw - Vera race-predominant standard for evaluating the constitutionality of racially gerrymandered state and local government districts.

II. Incorporation of Section 2 into Section 5 of the VRA

In Reno v. Bossier Parish School Board , 65 U.S.L.W. 4308 (U.S. May 12, 1997), the United States Supreme Court held that §5 preclearance of a covered jurisdiction's voting standard, practice or procedure may not be denied solely on the basis that it violates §2 of the VRA. Rejecting the Attorney General's long-held position that §2 is effectively incorporated into §5, the Court nonetheless concluded that §2 evidence of a plan's dilutive impact may be relevant although not dispositive of a § 5 inquiry. ⁽²⁾   In conducting an inquiry into a covered jurisdiction's motivation in enacting voting changes and in considering such evidence according to the majority, the analytical framework of Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252 (1978), should be looked to for guidance.

The opening line of Justice O'Connor's majority opinion promised much ("Today we clarify the relationship between § 2 and § 5 of the Voting Rights Act of 1965...."). The Court rejected the Justice Department's position that § 2 violations may form the basis for denying § 5 preclearance, a position which "would inevitably make compliance with § 5 contingent upon compliance with § 2," slip op. at 5. The Court further held that "Section 2 evidence" may be relevant to prove that a covered jurisdiction had retrogressive intent ⁽³⁾ and that it enacted a redistricting plan or other electoral change with a discriminatory purpose:

The fact that a plan has a dilutive impact therefore makes it "more probable" that the jurisdiction adopting that plan acted with an intent to retrogress than "it would be without the evidence." To be sure, the link between dilutive impact and intent to retrogress is far from direct, but "the basic standard of relevance...is a liberal one" and one we think is met here.

III. Reconciling Shaw and the VRA

In the wake of Shaw ⁽⁵⁾ , Miller ⁽⁶⁾ , Shaw II ⁽⁷⁾ and Vera ⁽⁸⁾ , one may ask what is left of §§2 and 5? The problem is that no one knows for sure. The Supreme Court has not declared either statutes unconstitutional; to the contrary, both remain in force. Nor has the Court overruled Gingles . Thus, state and local governments remain potentially liable under both statutes for failing to create majority-minority districts when racial bloc voting exists (unless the creation of such districts would amount to maximization). To avoid such potential liability, state and localities must use computerized census data and maps to take race into account in redistricting decisions. States and localities must use computerized census data and maps to take race into account in redistricting decisions. States and localities must do so in order to avoid drawing retrogressive plans and in order to avoid fragmenting compact, cohesive minority population concentrations. Where such concentrations exist, states and localities risk liability under the VRA if they fail to draw majority-minority districts, even if drawing such districts would force the state or local government to divide counties, cities, and/or precincts. See Cane v. Worcester County . ⁽⁹⁾ States and localities would likewise risk liability if they failed to draw a majority-minority district to protect an incumbent. See Garza v. County of Los Angeles . ⁽¹⁰⁾

Yet the very actions that state and local governments take to avoid VRA liability expose them to liability under Shaw and its progeny. If a state or local government uses computerized census data that shows the racial breakdown of the population or maps that show the location of minority population concentrations, that is considered evidence that race was the predominant actor in the redistricting plan. 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. If a state or local government divides counties, cities or precincts in an effort to avoid fragmentation of minority population concentrations, that is considered evidence that the state has subordinated "traditional redistricting principles" to race. See, Vera , supra . If a state fails to protect an incumbent when it draws a majority-minority district, that is likewise considered evidence that traditional redistricting principles have been subordinated. See Diaz , supra . To make matters worse, the Supreme Court has thus far declined to reach the issue of whether compliance with the VRA can constitute a compelling governmental interest for the use of race in redistricting.

The courts must provide state and local governments clearer guidelines about how to reconcile the competing demands of the VRA, on the one hand, and Shaw and its progeny, on the other. Justice O'Connor's concurring opinion in Vera offers several helpful suggestions in this regard. In her concurrence, Justice O'Connor conceded that reconciling the requirements of the VRA with those of the Equal Protection clause "sometimes requires difficult exercises of judgment." Vera , 116 S.Ct. at 1970 (O'Connor, J., concurring). In an effort to give states and localities some guidance in attempting to comply with both, Justice O'Connor outlined the following rules:

• 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 crate 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 §2 liability is a compelling governmental interest.
• Fourth, a district drawn to avoid §2 liability is narrowly tailored so long s it does not deviate substantially, for predominantly racial reasons, from the sort of district a court would draw to remedy a §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. Id . at 1969-70.

 

Justice O'Connor's concurrence does not answer all the open issues, however. The most important open question is about how to measure compactness. The most obvious way is the "eyeball" test: if it looks "ugly," it must be unconstitutional. The problem, of course, is that not all judges agree on what constitutes an "ugly" district. Another approach is to use mathematical measures. For example, one can compare the area of a district to the area of a circle drawn around the district or to the area of a circle having the same perimeter. Either comparison can be expressed as a ratio having a value between 0 and 1, with a perfectly compact district having a value of 1 and a perfectly non-compact district having a value of 0. See Diaz , slip op. at 42-44; Richard H. Pildes and Richard G. Niemi, Expressive Harms, "Bizarre Districts" and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno , 92 Mich. L. Rev. 483, 554-56 (1993). A third approach would be to use a "qualitative" or functional test that focuses not so much on a district's shape as on whether "the populations roped into a district are close enough, geographically, economically, and culturally to justify them being held in a single district." Johnson v. Miller . ⁽¹¹⁾ See also Dewitt v. Wilson , 856 F. Supp. 1409, 1414 (approving use of "functional compactness" measure, which does not refer to geometric shapes but to the ability of citizens and constituents to relate effectively to each other). Courts have already utilized this functional approach to the Gingles compactness precondition in §2 cases. ⁽¹²⁾ Whichever approach courts ultimately take, they need to pick one, because courts must resolve the issue of how to measure compactness if Shaw and the VRA are to be reconciled. Otherwise, states and localities will remain trapped in the same "catch-22" between the VRA and Shaw .

IV. Section 1988 Fee Recovery in Racial Gerrymandering and Section 2 Litigation

In Johnson v. Mortham , 950 F. Supp. 1117 (N.D. Fla. 1996), Plaintiffs, white and Hispanic voters challenging Florida's Third Congressional District under Shaw v. Reno , 509 U.S. 630 (1993), prevailed in their constitutional challenge that the district segregated voters on the basis of race, was not narrowly tailored to further compelling governmental interests, and thus could not survive strict scrutiny particularly in light of the intervening decisions in Shaw v. Hunt , infra, and Bush v. Vera , infra . As a result of Plaintiffs' racial gerrymandering challenge, the Third Congressional District had been materially altered and the Plaintiffs thus succeeded in their constitutional challenge to its configuration. Plaintiffs were deemed "prevailing parties" for purposes of §1988, even though they later objected to the Florida Legislature's redrawn district:

The Plaintiffs' actions in response to the legislative plan have little to do with the question of whether the Plaintiffs prevailed in this litigation.... The Plaintiffs have fully succeeded in their suit to strike down the former District 3. That the Plaintiffs may later seek to challenge the new modified District 3 is irrelevant. Id . at 1121.

V. Race-Predominant Redistricting After Miller , Shaw and Vera

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 , ⁽¹⁵⁾ 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 ⁽¹⁷⁾ . 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. ⁽¹⁸⁾ 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 the state'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 .

VI. Racial Rorschachism
 

In Hays v. State of Louisiana , 936 F.Supp. 360 (W.D. La. 1996), 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, the three-judge Court held that a new redistricting plan designed by the Louisiana legislature constituted a racial gerrymander in violation of the Equal Protection. 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." 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."

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 . ⁽¹⁹⁾

VII. Recent Developments in § 2 Litigation

In Uno v. City of Holyoke , ⁽²⁰⁾ 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, ⁽²¹⁾ 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." Slip Op. at 3. 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." Slip Op. at 19. 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." Slip Op. at 11.

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 . at *11. 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 *13.

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 , infra at n.18, 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.

In Dillard v. City of Greensboro , ⁽²⁷⁾ 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." ⁽²⁸⁾

(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.
 

VIII. Dillard Guidelines for Compliance With Miller - Shaw - Bush

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. ⁽²⁹⁾
 

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. ⁽³⁰⁾

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.

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. ⁽³¹⁾

Armed with the above guidelines and multi-stage procedural mandate, the special master was then called upon to fashion a districting plan for the City of Greensboro that would violate neither § 2 nor the Fourteenth Amendment despite its central feature of an intentionally created majority-minority district entailing an express use of racial classifications and created because of racial demographics. Id . at 956.

IX. Defense of Lack of Racial Bias or Animus

In Solomon v. Liberty County , ⁽³²⁾ the Court addressed the issue of whether a defendant in a §2 case can defeat a § 2 challenge by raising a lack of racial bias after a plaintiff has demonstrated the three Gingles preconditions.

As to the proper role of racial bias in a vote dilution inquiry under § 2 of the VRA, the Court noted that "the presence or absence of racial bias within the voting community is not dispositive of whether liability has been established under § 2." Slip. Op. at 19. In an effort to avoid converting vote dilution claim evaluation into a "intuitive call of the trial judge," the Court suggested that a § 2 defendant could always come up with some plausible cause or causes which could explain away sustained racially polarized voting." Such proof would never be dispositive:

Where a defendant offers unrebutted proof that there is no racial bias in the subject community, does the defendant always prevail under the results test? The simple answer is no. The absence of racial bias, like proportionality, is certainly some evidence that a minority group has equal access to the political process. However, it does not automatically preclude a finding of liability under § 2. Slip Op. at 27. ⁽³³⁾

In Goosby v. Town Board of the Town of Hempstead , 956 F.Supp. 326 (E.D. N.Y. 1997), the Court held that African-American citizens challenging the town's at-large electoral system established the Gingles precondition of geographical compactness, even though implementing a single-member voting system would grant the African-American plaintiffs the ability to control only fourteen percent of the Board's voting power. The compactness of the proposed majority-minority district was further demonstrated "the old fashioned way--by looking at a map." The town's black population was clearly confined "to a geographical bloc in its center." Id . at 334. After finding that the plaintiffs had satisfied the second and third Gingles preconditions of cohesion and bloc voting, the Court then turned to the Senate Report factors. In response to proof of racial polarization, the town contended that partisan affiliation rather than race best explained the divergent voting patterns among black and white voters in the town, and that racially polarized voting could thus not be deemed "legally significant" within the meaning of the third Gingles precondition. It argued that the §2 Plaintiffs were required to rebut proof of partisanship and to establish legally significant racial bloc voting by proving that the town's political parties served as proxies for illegitimate racial bias, and that if the Plaintiffs could not prove that such racial bias infected the voting community, then the Plaintiffs' §2 claim must fail. The town relied on Nipper v. Smith , ⁽³⁴⁾ LULAC v. Clements ⁽³⁵⁾ and Reed v. Town of Babylon , ⁽³⁶⁾ in support of its racial bias/burden-shifting argument.

The District Court disagreed:

Neither the existence (or non-existence) of racial bias in the community nor the strength of the correlation between partisan politics and divergent voting patterns can be dispositive in a §2 case. Rather, they are simply among the many factors to be considered in determining whether, under the totality of the circumstances, an at-large scheme has impaired the ability of black voters in the town to participate equally in town board elections. Id . at 353.

The Court did agree with the Defendants, however, that "a careful reading of the opinions in Gingles warrants the conclusion that the causes for white bloc voting must be considered." Id . at 355. While inquiry into causation is irrelevant through a Gingles analysis, "it is properly included as one of the factors to be considered in the totality of the circumstances inquiry." ⁽³⁷⁾

The Court emphasized the strong correlation between political partisanship and voting behavior of blacks and whites in the town of Hempstead, but

The fact that divergent voting patterns may logically be explained by a factor other than race does not end the inquiry, nor does it require Plaintiffs to prove racial bias in the community or that political parties in the town served as "proxies" for racism. The relevant factors here are not mutually exclusive. It is possible for race-neutral factors, such as political partisanship, to co-exist with race-based ones, such as diminished access to the slating process or insensitivity by elected officials to the particularized needs of the minority community. Id. at 355.

Evaluating all of the relevant facts considered as a whole, the District Court concluded that the failure of black citizens to elect representatives of their choice to the town board was not best explained by partisan politics, but that black citizens' inability to elect their preferred candidates was best explained by the fact that the political processes leading to the elections and the slating of candidates for them were not equally open to the participation of blacks. Those relevant facts included

(1) the size of the town;
(2) the absence of geographic sub-districts;
(3) the lack of access by blacks to the Republic Party slating process;
(4) the unfortunate use of racial appeals in political campaigns;
(5) the lack of responsiveness by the town board to the particularized needs of the black communities; and,
(6) "the stated desire by the town government to cling to a monolithic, single-voice legislature for a heterogeneous population consisting of many different communities and voices." Id . at 355.

X. Political Subdivisions Subject to Section 2

In Smith v. Salt River Project Agricultural Improvement and Power District , ⁽³⁸⁾ the Ninth Circuit held that African-Americans residing within the boundaries of a special district but who did not own real property within the district failed to prove their §2 claim against the district predicated upon the criterion of land ownership for eligibility to vote in district elections. The plaintiffs contended that only 40% of African-American heads of household within the district owned homes, compared with over 60% of white heads of households. The District Court had held that the special district was not a political subdivision within the scope of §2, and that even if §2 did apply, the plaintiffs failed to demonstrate that the district's voting system violated §2. The Ninth Circuit disagreed with the District Court regarding the applicability of §2, holding that it was inconsistent with the legislative history and judicial interpretation of §2 not to consider the special district a "political subdivision" within the meaning of §2, ⁽³⁹⁾ even though the Ninth Circuit held that the district was a political subdivision within the scope of §2 and that its electoral system could not abridge the rights of its electors to vote on account of their race or color, the district's landownership voting qualifications were held not to violate §2 of the Voting Rights Act. ⁽⁴⁰⁾
_____________________________________
1. I would like to thank Mark A. Packman, partner in the Washington, D.C. firm of Dickstein, Shapiro, Morin & Oshinsky, L.L.P.; A.B. 1977, Princeton Univ.; J.D. 1980, Georgetown Univ., for contributing Section III of this update, taken from Mr. Packman's recent presentation to the International Municipal Lawyers Association entitled "That's Some Catch, That Catch-22": Resolving the Conflict Between the Voting Rights Act and the Equal Protection Clause. Mr. Packman specializes in representing state and local governments in redistricting matters.

2. The continued vitality of the § 5 preclearance requirement has been demonstrated recently in Lopez v. Monterey County , 519 U.S. ___, 117 S.Ct. 340, 136 L.Ed.2d 273 (1996), U.S. v. State of Louisiana , 952 F. Supp. 1151 (W.D. La. 1997), and LULAC v. State of Texas , ___ F.3d ___, 1997.CO5.221 (http://www.versuslaw.com).

3. Under the majority's formulation for utilizing § 2 evidence in § 5 preclearance proceedings, a jurisdiction's decision to choose a redistricting plan that has a dilutive impact would not by itself suffice to establish discriminatory purpose under  § 5.  In assessing a covered juridiction's motivation and purpose in enacting voting changes, moreover, the courts must necessarily engage in a complex task that requires a "sensitive inquiry to such circumstantial and direct evidence as may be available," Slip Op. at 16, using the Arlington Heights framework to evaluate purpose.  The "important starting point" for assessing discriminatory intent under Arlington Heights is"the impact of the official action whether it 'bears more heavily on one race than the other.'"  ...In a Section 5 case, "impact might include a plan's retrogressive effect and...its dilutive impact.  Further considerations revelant to the purpose inquiry include, amoung other things, "the historical background of the [jurisdiction's] decision"; "[t]he specific sequence of events leading up to the challenged decision"; "[d]epartures from the normal procedural sequence"; and "[t]he legislative or administrative history, especially...[any] contemporary statements by members of the decision-making body."  Slip Op. at 17, citing Arlington Heights , 429 U.S. at 266-68.

4. Shaw v. Reno , 509 U.S. 630 (1993).

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

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

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

8. 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).

9. 918 F.2d 763 (9 ^th Cir. 1990), cert. denied , 498 U.S. 1028 (1991).

10.  864 F. Supp. 1354, 1389 (S.D. Ga. 1994), aff'd. , 115 S.Ct. 2475.

11. See Dillard v. Baldwin County Board of Education , 686 F. Supp. 1459, 1465-66 (M.D. Ala. 1988)(aesthetic considerations alone do not satisfy the Gingles compactness threshold; extent to which districts "aid[] or facilitate[] the political process" is also important).

12. 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)("The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, for comparable relief through a consent decree or settlement.") Id . at 111, 113 S.Ct. at 573.

13. See also Gardner v. Tallahatchie County , ___ F. Supp. ___, http://sunset.backbone.olemiss.edu/ ~llibcoll/ndms/mar97/97D0029P. html (N.D. Miss. March 10, 1997). the Court rejected the County's contention that since it had actively worked with §2 plaintiffs to develop a redistricting plan to relevant election contests for the County Board of Supervisors prior to the filing of the subject complaint, the Plaintiffs' lawsuit nonetheless was a "significant catalyst" in ending the County's unconstitutional behavior. Even though the County had been nego-tiating a plan of reapportionment prior to the filing of the lawsuit, the Plaintiffs contended that they had agreed to a redistricting plan proposed by the County, but contrary to that agreement the County had submitted a different plan to the Justice Department for §5 preclearance. That plan was opposed by the Plaintiffs and ultimately rejected by the Justice Department, following which the Plaintiffs filed suit and moved to enjoin upcoming elections which were going to be held under the old malapportioned plan. Despite the County's claim that it was voluntarily trying to resolve the problem, the Plaintiffs were able to show that the goals of their lawsuit were achieved and that the suit had caused the Defendants to remedy the discrimination. Plaintiffs were prevailing parties in this voting rights litigation, and their motion for an award of attorney's fees and costs was sustained, since

[t]he County submitted a plan to the Justice Department which was contrary to the plan agreed to by the Plaintiffs, and which was ultimately not precleared by the department. The lawsuit arose when the County proceeded to hold an election under a plan it had apparently already conceded was malapportioned. Under these set of facts it is clear to the Court that Plaintiffs' lawsuit was a substantial factor in causing the Defendants to take the appropriate actions to remedy the constitutional defects in its election process.

14. 952 F. Supp. 1141 (E.D. Va. 1997), pet. for cert. filed ., 65 U.S.L.W. 3788 (May 6, 1977).

15.  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 hierarch 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.

16. ___ F. Supp. ___, Civil Action No. 95-CV-2591 (E.D. N.Y., February 26, 1997), pet. for cert. filed , 65 U.S.L.W. 3728 (April 21, 1997).

17. 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."

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

19.  ____F.Supp. ____, 1997 WL 197552 (D. Mass. April 18, 1997).

20. Uno v. Holyoke , 72 F.3d 973 (1 ^st Cir. 1995).

21. 92 F.3d 283 (5 ^th Cir. 1996), pet. for cert. filed , 65 U.S.L.W. 3741 (U.S. April 22, 1997).

22.  807 F. Supp. 392 (N.D. Miss. 1992).

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

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

25. 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.

26. 946 F.Supp 946 (M.D. Ala 1996).

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

28. 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.

29. 30. Departing from Bush and the Supreme Court's clear prohibition against use of race-predominance in the redistricting process, the Court continued:

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."

30. 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.

32. Thus, while evidence of racial bias is not necessarily dispositive of §2 liability and while there is no per se rule precluding racial bias evidence presented under the Senate report factors, once a §2 plaintiff proves the three Gingles preconditions,

the defendant may present evidence of the lack of racial bias in the community, proportionate representation, past and present electoral success, as well as proof of other factors which are indicative of the existence or non-existence of vote dilution. The plaintiff may respond in kind. Without treating any single factor as dispositive, the review in court will finally determine through a certain inquiry whether the members of the minority group are denied equal political opportunity with respect to their race or color. If they are, then a claim under §2 has been established. Needless to say, this "is not an easy test" to meet. Slip Op. at 30.

33. 39 F.3d 1494 (11 ^th Cir. 1994)( en banc ), cert. denied , 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995).

34. 999 F.2d 831 (5 ^th Cir. 1993), cert. denied , 510 U.S. 1071, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994).

35. 914 F. Supp. 843 (E.D. N.Y. 1996).

36. Lewis v. Alamance County , 99 F.3d 600, 615 n.12 (4 ^th Cir. 1996), cert. denied ., 65 U.S.L.W. 3632 (U.S. May 19, 1997).

37.  ___ F.3d ___, 1997 WL 129035 (9 ^th Cir. March 24, 1997).

38.Citing U. S. v. Sheffield Board of Commissioners , 435 U.S. 110 (1978).

39. By virtue of joint stipulations of facts entered into by the parties, the Plaintiffs/Appellants had "effectively stipulated to the nonexistence of virtually every circumstance which might indicate that landowner-only voting results in racial discrimination," leading the Ninth Circuit to conclude that there was no indication that African American landowners (voters) are discriminated against in district elections. The Ninth Circuit affirmed the District Court's finding that the statistical disparity in African-American and white home ownership did not prove that the district had violated § 2.