CITATION: 92 Mich. L. Rev. 483
(Article is posted here by permission of author.)
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92 Mich. L. Rev. 483 printed in FULL format.
Copyright (c) Michigan Law Review 1993.
Michigan Law Review
December, 1993
92 Mich. L. Rev. 483
LENGTH: 53258 words
EXPRESSIVE HARMS, "BIZARRE DISTRICTS," AND VOTING RIGHTS: EVALUATING
ELECTION-DISTRICT APPEARANCES AFTER SHAW v. RENO*
* 1993 by Richard H. Pildes and Richard G. Niemi. All rights reserved.
Richard H. Pildes** and Richard G. Niemi***
* Professor of Law, University of Michigan. A.B. 1979, Princeton; J.D. 1983,
Harvard. - Ed.
**Professor of Political Science, University of Rochester. B.A. 1962,
Lawrence University; Ph.D. 1967, University of Michigan. - Ed. For first-rate
technical assistance, such as production of the maps and data sets included
herein, this article relies on Election Data Services, Inc., Washington, D.C.
and, more specifically, the efforts of Kimball Brace, Doug Chapin, and Jeff
Macintyre. For extremely helpful comments on earlier drafts, we would like to
thank Alex Aleinikoff, Steven Croley, Bernard Grofman, Sam Issacharoff, Larry
Kramer, Jeffrey Lehman, Deborah Malamud, Harold Stanley, and the participants in
the Yale Legal Theory Workshop. We were also fortunate to have exceptionally
skillful research assistance from Jeffrey Costello and Michael Heel.
TEXT:
[*483]
With technical assistance provided by Kimball Brace and Doug Chapin
Voting-rights controversies today arise from two alternative conceptions of
representative government colliding like tectonic plates. On one side is the
long-standing Anglo-American commitment to organizing political representation
around geography. As embodied in election districts, physical territory is the
basis on which we ascribe linked identities to citizens and on which we forge
ties between representatives and constituents. On the other side is the
increasing power of the Voting Rights Act of 1965 (VRA), n1 which organizes
political representation around the concept of interest. The Act prohibits the
dilution of minority voting power and thereby necessarily ascribes linked
identities to citizens on the basis of group political interests. Whenever these
two plates of territory and interest collide, surface disturbances in
voting-rights policy erupt.
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n1. Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. 1971,
1973 to 1973bb-1 (1988)).
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92 Mich. L. Rev. 483, *483 LEXSEE
Shaw v. Reno n2 is the most recent manifestation of these opposing forces.
In Shaw, a deeply fractured Supreme Court addressed the conflict between
territory and interest by concluding that, for purposes of [*484] the
Fourteenth Amendment, the geography of election districts "is one area in which
appearances do matter." n3 Against the pressure of interest-oriented
alternatives that the Voting Rights Act exerts, the decision reaffirms the
continuing centrality of physical territory to legitimate political
representation. In line with this reaffirmation, the Court endorsed a new kind
of equal protection challenge to legislative redistricting. This new,
geography-based challenge might be called a district appearance claim.
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n2. 113 S. Ct. 2816 (1993).
n3. 113 S. Ct. at 2827.
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As the Court defined this claim, "a reapportionment scheme may be so
irrational on its face that it can be understood only as an effort to segregate
voters ... because of their race ...." n4 In this passage, "on its face" is to
be read literally: only election-district configurations that convey a dramatic
visual impression of this sort implicate the principles of Shaw. The specific
holding of Shaw is that the Constitution permits such an election district only
when sufficiently justified under the exacting standards of strict scrutiny. n5
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n4. 113 S. Ct. at 2832.
n5. See 113 S. Ct. at 2832.
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No other decision from any court has held that, in some circumstances, a
district might violate the U.S. Constitution when its shape becomes too
"bizarre." n6 When physical geography is stretched too thin, when it is twisted,
turned, and tortured - all in the apparent pursuit of fair and effective
minority representation - at some point, too much becomes too much. That appears
to be the judicial impulse that accounts for Shaw: in the conflict of territory
and interest, the Constitution requires policymakers somehow to hold the line
and accommodate both.
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n6. This constraint is found in numerous state constitutions and statutes,
although it is not judicially enforced with a great deal of frequency. See infra
text accompanying notes 146-52 (discussing state compactness requirements and
their enforcement).
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But judicial impulses are one thing, legal doctrine another. That most
people, judges included, recoil instinctively from willfully misshapen
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92 Mich. L. Rev. 483, *484 LEXSEE
districts is understandable enough. Yet defining the values and purposes that
might translate this impulse into an articulate, justifiable set of legal
principles is no easy task. Leading academic experts in redistricting have long
argued that this impulse reflects untutored intuition, an instinctive response
that careful analysis reveals to be unwarranted. n7 Shaw translates this impulse
into constitutional doctrine [*485] but does little to explain or justify
the principles that might lie behind it. Moreover, the judicial impulse that too
much is too much will degenerate into either a manipulable tool or a meaningless
gesture unless transformed into legal principles that courts and redistricting
bodies can apply with at least some consistency and certainty. Yet, beyond
casting doubt on "highly irregular" districts, Shaw provides no criteria to
guide reapportionment bodies or courts in judging when this line has been
crossed. As Justice White, writing for four dissenters, said: "How the Court
intends to manage this standard, I do not know." n8
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n7. See, e.g., Bruce E. Cain, The Reapportionment Puzzle (1984); Robert G.
Dixon, Jr., Democratic Representation: Reapportionment in Law and Politics
(1968); Bernard Grofman, Criteria for Districting: A Social Science Perspective,
33 UCLA L. Rev. 77 (1985) hereinafter Grofman, Criteria for Districting; Bernard
Grofman, Would Vince Lombardi Have Been Right If He Had Said: "When It Comes to
Redistricting, Race Isn't Everything, It's the Only Thing"?, 14 Cardozo L. Rev.
1237 (1993) hereinafter Grofman, Vince Lombardi.
n8. Shaw, 113 S. Ct. at 2842 (White, J., dissenting).
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Working out the theory and implications of Shaw is particularly urgent
because the decision is significant for voting-rights law in not one, but two,
ways. Shaw directly addresses only constitutional constraints that will now
function at the outer boundaries of the districting process. At the core of that
process, however, the conflict between territory and interest must be resolved
in nearly every context in which the Voting Rights Act applies. The Act imposes
a duty to avoid minority-vote dilution, but the scope of that duty depends, in
part, upon how much the claims of interest can take precedence over those of
territory. Thus, Shaw will not only constrain the districting process
constitutionally but, through its radiating effects on statutory interpretation,
may reshape the districting process at its core.
This article attempts to define the constitutional principles that
characterize Shaw and to suggest how those principles might be applied in a
consistent, meaningful way. Part I, in which we argue that Shaw must be
understood to rest on a distinctive conception of the kinds of harms against
which the Constitution protects, is the theoretical heart of the article. We
call these expressive harms, as opposed to more familiar, material harms. In
Part II, we briefly survey the history of previous, largely unsuccessful,
efforts in other legal contexts to give principled content to these kinds of
harms in redistricting. Parts III and IV then provide an alternative for
evaluating district "appearance" by developing a quantitative approach for
measuring district shapes that is most consistent with the theory of Shaw. These
Parts are the empirical and social-scientific heart of the article. We apply our
quantitative approach to congressional districts throughout the country,
enabling meaningful comparisons between the congressional district at issue in
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Shaw and other districts. We also compare the shapes of congressional districts
historically to test whether the district in Shaw is a distinctly recent
phenomenon. In doing so, we identify [*486] the kind of districts most
constitutionally vulnerable after Shaw. In Part V, we describe the further
questions that lower courts must answer in deciding whether particular
vulnerable districts ultimately fail the constitutional standard outlined in
Shaw.
Shaw will undoubtedly be a controversial and confusing decision. We write
not to praise Shaw, nor to bury it, but to seek to understand it on its own
terms. What follows is an effort to tease out the principles underlying Shaw and
to suggest one approach to implementing its seemingly intractable mandate.
I. Deciphering the Holding of Shaw
Shaw is challenging intellectually precisely because it is so puzzling
legally. Untangling its reasoning requires considerable effort. We begin with
the Voting Rights Act, which provides the backdrop against which the facts in
Shaw arise.
A. Background of the Voting Rights Act
The VRA not only permits, but requires policymakers, in certain specific
circumstances, to be race conscious when they draw electoral district lines. n9
In 1982, Congress amended section 2 of the Act to clarify that discriminatory
intent was not a necessary element of a minority-vote dilution claim; proof of
discriminatory result is now sufficient. n10 Four years later, in Thornburg v.
Gingles, n11 the Court focused the standard for proving such results around
three factors that conjoin social conditions and voting structures. First, the
minority community n12 must be "sufficiently large and geographically compact"
to constitute a minority-dominated election district. n13 Second, the mi
[*487] nority community must be "politically cohesive" n14 - that is, it must
demonstrate common voting preferences for candidates. n15 Finally, the majority
must be engaged in racially polarized voting behavior that over time "usually"
defeats the preferred candidates of the minority community. n16 When these
conditions are met, the combination of the existing voting structure and the
political dynamics of race can be said to cause minority-vote dilution. n17 The
remedy for such a violation requires the governmental unit to create an
alternative voting structure that will enable fair and effective minority
representation.
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n9. Section 2, for example, explicitly speaks in racially conscious terms:
"The extent to which members of a protected class have been elected to office
... is one circumstance which may be considered" in assessing a dilution claim.
42 U.S.C. 1973(b) (1988). There is no reason to assume, of course, that
redistricters were not race conscious before the VRA.
n10. 42 U.S.C. 1973 (1982).
n11. 478 U.S. 30 (1986).
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92 Mich. L. Rev. 483, *487 LEXSEE
n12. The Act protects racial groups and, since 1975, language-minority
groups, 42 U.S.C. 1973(a), 1973b(f)(2) (1988) (defined as Asian Americans,
American Indians, Alaskan natives, and persons of Spanish heritage in 42 U.S.C.
1973l(c)(3) (1988)).
n13. 478 U.S. at 50-51. A major question the Court continues to leave open is
whether plaintiffs can bring claims seeking "influence districts" - that is,
districts in which the plaintiffs' group is not large enough to control election
outcomes in a district, but large enough so that an alternative to the current
system would give it significant enough influence, in conjunction with
supportive coalition members, to control outcomes. See Voinovich v. Quilter, 113
S. Ct. 1149, 1155 (1993) (assuming, without deciding, viability of such claims);
Growe v. Emison, 113 S. Ct. 1075, 1084 n.5 (1993) (leaving question open);
Gingles, 478 U.S. at 46-47 n.12 (leaving question open); see also Prosser v.
Elections Bd., 793 F. Supp. 859, 870 (W.D. Wis. 1992) (three-judge court; per
curiam) ("The creation of a stronger "influence' district, however, is a modest
plus from the Act's standpoint."). For discussion of influence-district claims,
see Bernard Grofman et al., Minority Representation and the Quest for Voting
Equality 117-18 (1992); J. Morgan Kousser, Beyond Gingles: Influence Districts
and the Pragmatic Tradition in Voting Rights Law, 27 U.S.F. L. Rev. 551 (1993);
Allan J. Lichtman & J. Gerald Hebert, A General Theory of Vote Dilution, 6 La
Raza L.J. 1 (1993).
n14. 478 U.S. at 51.
n15. 478 U.S. at 56.
n16. 478 U.S. at 50-51. The best study of the emergence and content of the
racial-polarization requirement is Samuel Issacharoff, Polarized Voting and the
Political Process: The Transformation of Voting Rights Jurisprudence, 90 Mich.
L. Rev. 1833 (1992).
n17. More precisely, Gingles holds that vote dilution is shown only if,
"under the totality of the circumstances," the challenged electoral mechanisms
"result in unequal access to the electoral process." 478 U.S. at 46.
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The Court, however, specifically designed the three Gingles criteria to
define vote dilution only in the context of one particular type of electoral
structure: multimember or at-large electoral districts. As in Gingles, most VRA
litigation at the time challenged such districts. n18 These electoral
structures, then common throughout the country, n19 dated from
turn-of-the-century Progressive era reforms. In these reforms, northern
Progressives and southern Redeemers sought to undermine community-based politics
- portrayed as the province of corrupt local bosses - and instead to concentrate
power in more centralized, "expertly" administered political bodies. n20 In many
places, the specific aim of these reforms was to diminish the political
influence of freed blacks. n21 In these Gingles-era challenges to multimember
[*488] election units, plaintiffs typically sought a remedy that would divide
the unit into several single-member ones, including an appropriate number of
minority-dominated districts.
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92 Mich. L. Rev. 483, *488 LEXSEE
n18. When multiple candidates are elected from a single jurisdiction, a
cohesive minority population might constitute a significant fraction of the
district and yet elect no members. That is, the majority population would always
outvote them. See Lani Guinier, The Triumph of Tokenism, 89 Mich. L. Rev. 1077,
1094 (1991); Issacharoff, supra note 16, at 1839-40.
n19. Cf. Richard G. Niemi et al., The Impact of Multimember Districts on
Party Representation in U.S. State Legislatures, 10 Legis. Stud. Q. 441, 443-46
(1985).
n20. See generally Samuel P. Hays, The Politics of Reform in Municipal
Government in the Progressive Era, in American Political History as Social
Analysis 205, 215-16 (1980).
n21. See J. Morgan Kousser, The Undermining of the First Reconstruction:
Lessons for the Second, in Minority Vote Dilution 27 (Chandler Davidson ed.,
1984); J. Morgan Kousser, The Voting Rights Act and the Two Reconstructions, in
Controversies in Minority Voting 144 (Bernard Grofman & Chandler Davidson eds.,
1992) hereinafter Kousser, The Voting Rights Act ("The third means of
accomplishing the counterrevolution against Reconstruction, structural
discrimination, involved such tactics as gerrymandering, annexations, the
substitution of at-large for single-member-district elections ... and the
adoption of nonstatutory white primaries.").
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Since Gingles, however, a second type of challenge has emerged and become
central. This newer challenge was the catalyst for the North Carolina
districting scheme at issue in Shaw. As states in many parts of the country
dismantled multimember districts, the focus of litigation began to shift toward
the precise design of single-member districts. These cases are winding through
the courts; as yet only a few reported decisions address VRA challenges to
single-member district plans. n22 Indeed, not until this Term did the Supreme
Court definitively hold that the Gingles criteria also control VRA challenges to
single-member district plans. n23 Though Gingles now clearly applies, the
precise way in which courts must adapt its criteria for single-member districts
raises a battery of complex questions. As challenges to single-member districts
come to dominate VRA litigation in the 1990s, the need for judicial resolution
of these questions has become increasingly urgent. n24
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n22. See Grofman et al., supra note 13, at 109 ("Indeed, since Gingles was
decided in 1986, as of mid-1991 only a handful of Section 2 cases involving
challenges to single-member districts had been decided, and only four of these
had been reviewed at the appellate level.") (citations omitted).
n23. Growe v. Emison, 113 S. Ct. 1075, 1084 (1993). In a major VRA decision,
a three-judge district court had anticipated this holding while recognizing that
courts could not directly apply Gingles to single-member districts without
modification. See Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark. 1989), affd.,
489 U.S. 1019 (1991):
Thornburg and Smith cannot be automatically applied to the single-member
context.... But the basic principle is the same. If lines are drawn that limit
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92 Mich. L. Rev. 483, *488 LEXSEE
the number of majority-black single-member districts, and reasonably compact and
contiguous majority-black districts could have been drawn, and if racial
cohesiveness in voting is so great that, as a practical matter, black voters'
preferences for black candidates are frustrated by this system of apportionment,
the outlines of a Section 2 theory are made out.
730 F. Supp. at 205.
n24. As one example, this Term the Court will address challenges to the
redistricting of Florida's single-member house and senate districts. 62 U.S.L.W.
3261 (Oct. 12, 1993) (summarizing the dispute in Johnson v. De Grandy, No.
92-519, prob. juris. noted, 113 S. Ct. 1249 (1993)). A principal issue in that
case is precisely how Gingles should be applied to single-member districts. The
State of Florida argues that proof of the Gingles preconditions is necessary,
but not sufficient, in single-member district challenges. As the reply brief
notes: "Proof of the Gingles preconditions simply does not make out a prima
facie case of vote dilution in the single-member context. The Gingles
preconditions are plainly relevant in the single-member context because they
establish causation, but they cannot play the same role they do in multimember
district cases." Reply Brief for Appellant at 3, Johnson v. De Grandy, No.
92-519, prob. juris. noted, 113 S. Ct. 1249 (1993).
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In applying Gingles to single-member districts, the most conceptually
difficult issues for courts arise from the requirement that a minority group be
"sufficiently large and geographically compact." n25 At [*489] this point
the tension between territory and interest becomes most acute. In the
multimember context, the conflict is more diminished because the existing
district boundary lines define the limited geographic territory within which to
locate replacement single-member districts. One must still define compactness,
but within a relatively small, predefined physical territory. In contrast, in
challenges to existing single-member districting plans for congressional or
state legislative seats, the only fixed boundary lines are those of the state
itself. Within those boundaries, an unlimited number of districting plans and
individual district shapes are possible. Defining "geographically compact" in
this context is more necessary and more difficult.
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n25. Thornburg v. Gingles, 478 U.S. 30, 50 (1986); see also Grofman et al.,
supra note 13, at 115-16 ("Two of the Gingles prongs can probably be applied
with little or no modification.... The first prong, however, is more difficult
to modify in a suitable way.").
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Such was the legal context in which North Carolina undertook the redrawing
of its congressional districts in the wake of the 1990 Census. As a result of
this census, the state was entitled to one additional U.S. congressional seat,
bringing its delegation up to twelve. The effort to carve the state into twelve
districts generated a mix of partisan and racial considerations increasingly
common to redistricting. In North Carolina, the General Assembly controls
redistricting, with the Governor having no veto power n26 or other entitlement
to participate. During the redistricting of the 1990s, Democrats controlled
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both houses of the General Assembly, while the Governor was Republican, n27 and
partisan interests had unusually free rein. In addition, in part as a direct
result of Gingles itself, the power of the black legislative coalition in the
General Assembly had grown. n28
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n26. Pope v. Blue, 809 F. Supp. 392, 394 (W.D.N.C.) (three-judge court),
affd., 113 S. Ct. 30 (1992).
n27. 809 F. Supp. at 394.
n28. Compare Gingles, 478 U.S. at 40, noting that no more than four percent
of North Carolina's legislators were black in 1982 with Joint Center for Pol. &
Econ. Stud., Black Elected Officials: A National Roster, 1991, at xxiii tbl. 3
(20th ed. 1992), finding that the number of black North Carolina state
legislators as of January, 1991 was 19, which is 11% of 170, the total number of
legislators. 478 U.S. at 40.
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North Carolina's voting-age population is presently seventy-eight percent
white and twenty percent black. n29 But the state's black population is
relatively dispersed, with black residents a majority in only five of the
state's one hundred counties. Because numerous counties in North Carolina have a
history of discrimination with respect to voting, the VRA requires that the
state submit any change in its voting practices or structures to the Attorney
General for federal preclearance. This process is the section 5 preclearance
review. n30 [*490]
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n29. Shaw v. Reno, 113 S. Ct. 2816, 2820 (1993).
n30. Section 5 of the VRA prohibits the implementation of any changes
affecting voting in certain jurisdictions that the Act covers without the
approval of the Attorney General or a special three-judge federal district court
in the District of Columbia. To receive preclearance, a covered jurisdiction
must establish that its proposed change does not have the purpose or effect of
"denying or abridging the right to vote on account of race or color." 42 U.S.C.
1973(c) (1982). Most jurisdictions prefer to seek preclearance from the Attorney
General rather than a declaratory judgment in the special district court. See
Drew S. Days III, Section 5 and the Role of the Justice Department, in
Controversies in Minority Voting, supra note 21, at 52, 53 n.2 (citing Justice
Department statistics). For an extensive academic study of the 5 process, see
Hiroshi Motomura, Preclearance Under Section Five of the Voting Rights Act, 61
N.C. L. Rev. 189 (1983).
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The state's initial redistricting plan included one "convoluted" n31
district with a black majority; the unusual shape was necessary to protect the
political base of white Democrat incumbents in adjoining districts. n32 When the
state submitted this plan to the Justice Department, the Attorney General
entered a formal objection and refused clearance. He offered several reasons
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92 Mich. L. Rev. 483, *490 LEXSEE
for doing so, including the state's failure to create a second majority-black
district "in the south central to southeastern part of the state," where
creating such a district appeared feasible. n33 The Attorney General also
commented that several alternative districting plans had been submitted to the
Justice Department - at least one of which had been presented to the North
Carolina General Assembly - that included a second majority-minority district in
the southern part of the state. Noting that the state had been aware of the
minority community's "significant interest" in creating a second
majority-minority district, the Attorney General concluded that the state's
failure to do so in its initial redistricting plan rested on what appeared to be
" "pretextual reasons.' " n34
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n31. Cf. Brief Amicus Curiae of the Republican National Committee in Support
of Appellants at 9, Shaw v. Reno, 113 S. Ct. 2816 (1993) (No. 92-357).
n32. Pope v. Blue, 809 F. Supp. 392, 394 (W.D.N.C.) (three-judge court) ("In
order to protect white Democratic congressmen at the expense of Republicans, the
General Assembly had to make the majority-black district very contorted."),
affd., 113 S. Ct. 30 (1992).
n33. Brief for the Federal Appellees at 10a app. B, Shaw v. Reno, 113 S. Ct.
2816 (1993) (No. 92-357)).
The proposed configuration of the district boundary lines in the south-central
to southeastern part of the state appears to minimize minority voting strength
given the significant minority population in this area of the state. In general,
it appears that the state chose not to give effect to black and Native American
voting strength in this area, even though it seems that boundary lines that were
no more irregular than found elsewhere in the proposed plan could have been
drawn to recognize such minority concentration in this part of the state.
Id.
n34. Shaw, 113 S. Ct. at 2820 (citing Brief for Federal Appellees at 10a-11a
app. B).
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Rather than challenge this finding judicially, the North Carolina General
Assembly adopted a new redistricting plan. This plan included a second
majority-black district, with a total population of 56.63% black and a
voting-age population of 53.34% black. n35 The new district, however, was not in
the south-central to southeastern part of the state. Instead, the state created
a 160-mile long district, [*491] winding through ten counties, often in a
corridor no wider than Interstate Highway 85, which links the urban areas of
Durham, Greensboro, Winston-Salem, and Charlotte. n36 This area became
Congressional District 12 (District 12 or CD12), the focus of Shaw. The record
suggests that the General Assembly drew the district this way to minimize the
risk to incumbent congressmen from the creation of a second majority-black
district. n37 On resubmission, the Attorney General precleared the new
redistricting plan. n38 Figure 1, on the next page, provides a map of District
12.
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92 Mich. L. Rev. 483, *491 LEXSEE
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n35. Brief for Federal Appellees at 15a-16a app. D.
n36. Indeed, 80% of the district's residents live in cities with populations
of 20,000 or more. In contrast, the other majority-black district, District 1,
is predominantly rural. More than 80% of the residents in that district live
outside cities with populations of 20,000 or more. Brief for Federal Appellees
at 5 n.2.
n37. See Shaw, 113 S. Ct. at 2841-42 n.10 (White, J., dissenting); see also
text accompanying notes 116-32.
n38. As long as states comply with their obligation to avoid minority-vote
dilution, they generally retain policymaking discretion to draw their districts
in accordance with their own assessment of state policy. States have no duty to
"follow" the Attorney General's recommendations for the design of districts; in
fact, the Attorney General does not make such recommendations. Although the
Attorney General must determine that a majority-minority district is generally
feasible to deny preclearance under 5, this geographic determination is general
and does not define any specific district design or location. See Drew S. Days,
III & Lani Guinier, Enforcement of Section 5 of the Voting Rights Act, in
Minority Vote Dilution, supra note 21, at 167, 171 ("The department objective
has not been to dictate any particular result.").
The Justice Department has consistently maintained that the VRA does not
require extremely contorted and convoluted districts. As Drew Days, now
Solicitor General, and Lani Guinier wrote in 1984, faced with a "set of facts in
which it can be shown that no fairly drawn redistricting plan will result in
minority control of one district because of dispersed minority residential
patterns," the Justice Department's "response would not be to demand that the
jurisdiction adopt a crazy-quilt, gerrymandered districting plan to ensure
proportional minority representation." Id. At the same time, the 5 preclearance
review is limited to determining whether minority-vote dilution is taking place.
If it is not, the Justice Department does not believe it has the authority to
reject a plan merely because it employs contorted districts. See, e.g., Letter
from John R. Dunne, Assistant Attorney General, Civil Rights Division, U.S.
Department of Justice (Nov. 18, 1991) (preclearing Texas congressional
redistricting plan at issue in Terrazas v. Slagle, 789 F. Supp. 828 (W.D. Tex.
1991), affd., 112 S. Ct. 3019 (1992)), quoted in Brief Amicus Curiae of the
Republican National Committee in Support of Appellants at 9-10 n.6, Shaw v.
Reno, 113 S. Ct. 2816 (1993) (No. 92-357); see also John R. Dunne, Remarks of
John R. Dunne, 14 Cardozo L. Rev. 1127 (1993).
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Two significant consequences followed once the plan went into effect. First,
in the 1992 congressional elections, North Carolina elected its first black
representatives since Reconstruction. They were elected from the two
majority-black districts in the plan, including District 12. Second, editorial
writers feasted on District 12. In a label that was frequently repeated, the
Wall Street Journal tagged it "political pornography." n39 The Raleigh News and
Observer complained that
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92 Mich. L. Rev. 483, *491 LEXSEE
-
n39. Political Pornography-II, Wall St. J., Feb. 4, 1992, at A14.
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[SEE FIGURE 1 IN ORIGINAL]
it "plays hell with common sense and community." n40 In another editorial it
argued: "The maps ... don't make any sense to people who [*492] have any
sense." n41 Even some leading defenders of the VRA, clearly taken aback by the
shape of District 12, suggested that it might violate the Constitution. n42
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n40. I-85 No Route to Congress, Raleigh News & Observer, Jan. 13, 1992, at
A8.
n41. Reading the "Inkblot," Raleigh News & Observer, Jan. 21, 1992, at A8.
n42. See Grofman, Vince Lombardi, supra note 7, at 1261 (leading expert
witness in voting-rights cases describing his own affidavit in which he
characterized North Carolina District 12 as a "crazy-quilt" lacking "rational
state purpose").
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B. The Holding in Shaw: Vote-Dilution and
District-Appearance Claims
In Shaw, the Court concluded that District 12 did indeed raise serous enough
constitutional concerns as to require justification under the exacting standards
of strict scrutiny. To do so, the Court endorsed a distinction between two
radically different kinds of voting-rights claims, each of which the Equal
Protection Clause now recognizes. n43
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n43. A third kind of voting-rights claim, which was the first to arise
historically, is a less frequent litigation subject today. This is the claim of
a direct and outright deprivation of the individual right to vote, as in cases
that challenged poll taxes and literary tests. See, e.g., Guinn v. United
States, 238 U.S. 347 (1915).
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The first is a traditional "vote-dilution" claim. To establish such a claim
under the Fourteenth Amendment, plaintiffs must prove the fa [*493] miliar
requirements of discriminatory purpose and effect. Most important for our
purposes, the relevant discriminatory effects must involve actual, material harm
to the voting strength of an identifiable (and constitutionally protected)
group. In the context of race, the Equal Protection Clause is violated only when
an election structure "affects the political strength" n44 of a racial group
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92 Mich. L. Rev. 483, *493 LEXSEE
by unduly diminishing its influence on the political process. This material
injury - diminution of relative group political power - is the sine qua non of a
vote-dilution claim.
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n44. City of Mobile v. Bolden, 446 U.S. 55, 83 (1980) (Stevens, J.,
concurring).
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Before Shaw, this claim might have been thought to exhaust the
constitutional guarantees securing the voting rights of protected groups. Vote
dilution was not merely one "type" of claim; it defined the very meaning of
constitutionally protected voting rights and the nature of voting-related harms
under the Constitution. Shaw now recognizes a distinct type of claim. This new
claim entails a distinct conception of constitutional harms as well as a
distinct, implicit theory of political representation.
We call this claim a district appearance claim. As we will explain, n45 the
kind of injury it validates involves what we call expressive, rather than
material, harms. The theory of voting rights it endorses centers on the
perceived legitimacy of structures of political representation, rather than on
the distribution of actual political power between racial or political groups.
Vote-dilution and district-appearance claims share no common conceptual
elements. They recognize distinct kinds of injuries, implicate different
constitutional values, and reflect differing conceptions of the relationship
between law and politics. These two claims cannot be assimilated into a single,
unitary approach to the Fourteenth Amendment. n46 [*494]
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n45. See infra text accompanying notes 90-96.
n46. At several points, the Court directly signals its awareness that it is
defining two distinct types of claims. The clearest example arises in the
Court's discussion of United Jewish Orgs., Inc. v. Carey, 430 U.S. 144 (1977)
hereinafter UJO, the leading equal protection vote-dilution precedent.
In that case, New York, in response to Voting Rights Act violations, had
adopted a 1974 reapportionment plan that redesigned state senate and assembly
districts in Kings County. The new plan did not change the number of districts
with nonwhite majorities, but the new districts redistributed minority voters in
ways likely to enhance the effectiveness of their voting power. One result,
however, was that the 30,000-member Hasidic Jewish community in Williamsburgh,
which the previous plan had located entirely in one assembly and one senate
district, was fragmented into two assembly and senate districts. On behalf of
these voters, plaintiffs brought a complaint charging New York with violating
the Constitution by deliberately revising its reapportionment plan along racial
lines.
Writing for the plurality, Justice White rejected this claim on the ground
that states can engage in race-conscious districting as long as they do not
unfairly dilute the voting power of any racial group. See 430 U.S. at 165
("There was no fencing out of the white population from participation in the
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92 Mich. L. Rev. 483, *494 LEXSEE
political processes of the county, and the plan did not minimize or unfairly
cancel out white voting strength."). Treating the Hasidic Jewish community as
part of the white community for constitutional purposes, the plurality noted
that the county's population was 65% white and that the new reapportionment plan
left white majorities in control of 70% of the assembly and senate districts in
the county. In the absence of vote dilution, the intentional use of race was not
discriminatory and hence not a constitutional violation. 430 U.S. at 166 ("As
long as whites in Kings County, as a group, were provided with fair
representation, we cannot conclude that there was a cognizable discrimination
against whites or an abridgment of their right to vote on grounds of race.").
Shaw distinguishes UJO by categorizing it as a vote-dilution case and by
recognizing an altogether different kind of claim: "UJO's framework simply does
not apply where, as here, a reapportionment plan is alleged to be so irrational
on its face that it immediately offends principles of racial equality." Shaw v.
Reno, 113 S. Ct. 2816, 2829 (1993). Unlike UJO, here the allegation is "that the
plan, on its face, was so highly irregular that it rationally could be
understood only as an effort to segregate voters by race." 113 S. Ct. at 2829.
Hence, even in the absence of vote dilution, Shaw holds that the deliberate use
of race can constitute unconstitutional discrimination with respect to voting
rights.
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1. Explaining District-Appearance Claims
To begin to understand Shaw, one must first note that vote dilution is not
involved in the case. The plaintiffs could not prove - and the Court
acknowledged that they did not allege - vote dilution. n47 This conclusion is
understandable, for no racial group in North Carolina could plausibly claim any
material deprivation of its relative voting strength. Certainly white residents,
who constitute seventy-six percent of the population in North Carolina n48 and
approximately seventy-eight percent of its voting-age population, n49 could not
claim impermissible dilution of their voting power. Under the statewide
redistricting plan, white voters still constituted a majority in ten, or
eighty-three percent, of the twelve congressional districts. n50 With effective
control of more than a proportionate share of seats, white voters in North
Carolina could not prove, and did not try to prove, that the redistricting plan
diluted their relative voting power in intent or effect.
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n47. Shaw, 113 S. Ct. at 2824.
n48. Brief for Appellants at 62, Shaw v. Reno, 113 S. Ct. 2816 (1993) (No.
92-357).
n49. Brief for Federal Appellees at 16a app., Shaw (No. 92-357).
n50. 113 S. Ct. at 2838 (White, J., dissenting).
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92 Mich. L. Rev. 483, *494 LEXSEE
Second, Shaw does not express constitutional concern with the shape of
election districts per se. The Court is clear that, no matter how bizarre or
contorted, district appearances standing alone do not implicate the U.S.
Constitution. n51 Colorful references to the shape of District 12 do permeate
the opinion: "highly irregular," n52 "tortured and dramatically irregular," n53
"bizarre," n54 and "irrational on its face." n55 Nevertheless, it is the
conjunction of these features with race- [*495] conscious districting that
the Court condemned, not oddly shaped districts per se. Any other result would
revolutionize the districting process because it would suddenly subordinate
discretionary state policy choices to a general constitutional imperative
concerning district shapes. Far from suggesting a principle of such broad sweep,
the decision explicitly reaffirms that the Constitution does not impose on state
reapportionment bodies any general requirement of compactness or contiguity. n56
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n51. 113 S. Ct. at 2826-27.
n52. 113 S. Ct. at 2826, 2829.
n53. 113 S. Ct. at 2820, 2827.
n54. 113 S. Ct. at 2818, 2825-26, 2831, 2843, 2845, 2848.
n55. 113 S. Ct. at 2818, 2829, 2832, 2842.
n56. 113 S. Ct. at 2827.
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Third, Shaw also does not appear to condemn race-conscious districting per
se. n57 This point is more ambiguous, both because much more hinges on this
holding and because the opinion refrains from endorsing it explicitly. Moreover,
when this question is confronted directly, the majority in Shaw might well
divide over this question. Justice Kennedy, for example, has gone out of his way
to reserve judgment on the constitutionality of section 2 of the Act. n58
Nonetheless, we believe Shaw is best read as an exceptional doctrine for
aberrational contexts rather than as a prelude to a sweeping constitutional
condemnation of race-conscious redistricting. In their contribution to this
symposium, Professors Alex Aleinikoff and Samuel Issacharoff address this
question in detail and reach the same conclusion. n59 We, however, can only
briefly justify this view here.
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n57. Our use of the term condemn is meant to focus on the ultimate question
of whether a race-conscious intent invalidates such districts under the
Constitution. Analytically, there are two stages to such an inquiry: whether
Shaw requires strict scrutiny for such districts, and, if so, what kinds of
justifications might suffice. Whichever way these formal questions are resolved,
we believe Shaw does not stand for, or portend a sweeping proscription on,
intentional race-conscious districting that does not involve actual vote
dilution.
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92 Mich. L. Rev. 483, *495 LEXSEE
n58. See, e.g., Chisom v. Roemer, 111 S. Ct. 2354, 2376 (1991) (Kennedy, J.,
dissenting) (writing separately solely to reserve question of the
constitutionality of 2).
n59. See T. Alexander Aleinikoff & Samuel Issacharoff, Race and
Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev.
588, 644 (1993) ("The Court's focus on a district's shape rather than the
State's use of a racial classification will make the turn toward Bakke in the
voting-rights field possible.").
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First, if race-conscious districting per se were the constitutional problem,
it is difficult to rationalize the architecture of the decision. The keystone in
Shaw is the "highly irregular" shape of District 12. The negative pregnant,
then, is that "regular" districts designed for race-conscious reasons do not
raise similar constitutional concerns. Second, the Court's analysis builds on
major precedents establishing that intentional race-conscious districting is not
inherently unconstitutional. The Court finds constraints that apply in Shaw
within these precedents or concludes that these cases address a distinct kind of
claim and hence do not apply; it does not, however, call these deci [*496]
sions into question. n60 Third, at several points, the Court suggests that
race-conscious redistricting is neither problematic nor a trigger for strict
judicial scrutiny. n61 In addition, compliance with the VRA and Gingles
necessarily requires race-conscious districting; Shaw does not suggest, at least
directly, that the Court was questioning the restructuring of the political
process that has resulted from reliance on the VRA and Gingles. At least to the
extent race consciousness arises in connection with VRA compliance, Shaw appears
to accept it.
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n60. The most significant example is the Court's discussion of the plurality
opinion in United Jewish Orgs., Inc. v. Carey, 430 U.S. 144 (1977). The UJO
plurality held that "neither the Fourteenth nor the Fifteenth Amendment mandates
any per se rule against using racial factors in districting and apportionment,"
430 U.S. at 161; that "the permissible use of racial criteria is not confined to
eliminating the effects of past discriminatory districting or apportionment,"
430 U.S. at 161; that "a reapportionment cannot violate the Fourteenth or
Fifteenth Amendment merely because a State uses specific numerical quotas in
establishing a certain number of black majority districts," 460 U.S. at 162; and
that, in the absence of vote dilution, the deliberate use of race to enhance
underrepresented minority groups casts "no racial slur or stigma with respect to
whites or any other race ...." 430 U.S. at 165. Shaw does not directly take
issue with any of these principles, distance itself from them, or suggest UJO is
no longer authoritative. Instead, Shaw concludes that UJO reached a certain
holding, conditioned on particular principles, and Shaw then applies these
conditions to evaluate the North Carolina districting plan. Thus, the Court
quotes a passage in which the UJO plurality had held that a state, employing
sound districting principles, might deliberately draw districts in a
race-conscious way for the purpose of ensuring fair minority representation.
Shaw simply concludes that North Carolina appeared not to have adhered to sound
districting principles. Shaw, 113 S. Ct. at 2832. For further discussion of the
Court's treatment of UJO, see supra note 46.
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92 Mich. L. Rev. 483, *496 LEXSEE
n61. For example, the Court states:
Redistricting differs from other kinds of state decisionmaking in that the
legislature always is aware of race when it draws district lines, just as it is
aware of age, economic status, religious and political persuasion, and a variety
of other demographic factors. That sort of race consciousness does not lead
inevitably to impermissible race discrimination.
113 S. Ct. at 2826 (emphasis added). The Court also affirms that "the States
certainly have a very strong interest in complying with federal
antidiscrimination laws that are constitutionally valid as interpreted and as
applied." 113 S. Ct. at 2830.
The Court does, however, obscure its position a bit in other passages that
explicitly reserve judgment on one aspect of race-conscious districting: the
intentional creation of majority-minority districts. 113 S. Ct. at 2828 ("Thus,
we express no view as to whether "the intentional creation of majority-minority
districts, without more' always gives rise to an equal protection claim.")
(quoting 113 S. Ct. at 2839 (White, J., dissenting)). One might read the Court's
reservation of this question as casting doubt on this practice, even for
reasonably compact districts. Any such reading, however, would be inconsistent
with much else in the opinion as well as a direct attack on Gingles. That there
is some ambiguity here might well reflect the divisions within the Shaw majority
on these questions.
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The Court's decision in Voinovich v. Quilter, n62 also decided last Term,
further supports the conclusion that Shaw is not a broad attack on
race-conscious districting per se. n63 In Quilter, the Republican-dominated Ohio
apportionment board had redistricted the Ohio legislature and, in the process,
intentionally created several minority-dominated election districts. Plaintiffs
claimed that these districts illegally [*497] "packed" minority voters into
a handful of districts, thereby diluting their potential power in other
districts. The three-judge federal trial court agreed; it held that the VRA
permits the intentional creation of minority-dominated districts only when such
districts are necessary to remedy what would otherwise be a violation of the
VRA. n64
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n62. 113 S. Ct. 1149 (1993).
n63. It should be disclosed that Professor Pildes was a legal consultant to
the court-appointed special master in Quilter.
n64. 113 S. Ct. at 1153.
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Quilter thus presented an inversion of the routine voting-rights case.
Rather than claiming that Ohio had been insufficiently attentive to race, the
plaintiffs argued that the state had been too attentive. The state had created
too many minority districts that were too "safe" - presumably to pursue an
underlying partisan agenda of enhancing Republican influence in other
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92 Mich. L. Rev. 483, *497 LEXSEE
districts. Thus, the plaintiffs argued that race-conscious districting over and
above what the VRA requires violates the Act and the Constitution.
The Supreme Court unanimously rejected this argument. In doing so, the Court
directly contradicted the three-judge court's view that the VRA establishes both
a floor and a ceiling on race-conscious districting. n65 As the Court held,
"federal courts may not order the creation of majority-minority districts unless
necessary to remedy a violation of federal law. But that does not mean that the
State's powers are similarly limited. Quite the opposite is true ...." n66 The
VRA therefore does not limit state redistricters only to remedial uses of race.
As long as no illegal vote dilution occurs, states do not violate the Act, no
matter how race conscious they might be in designing election districts. n67
Under the VRA, states need not first confess or prove past discrimination in
election practices to justify their race-conscious creation of districts -
indeed, they need not justify these districts to federal courts at all.
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n65. 113 S. Ct. at 1156.
n66. 113 S. Ct. at 1156 (citations omitted).
n67. In Quilter, the district court had found no racially polarized voting in
the relevant areas of Ohio. In the absence of polarized voting, the Court
recognized that black and white voters are essentially fungible; race-conscious
districting cannot have a dilutive effect when voting patterns are not
structured along racial lines. 113 S. Ct. at 1158.
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If this were all there were to Quilter, the meaning of Shaw would be clear:
in the absence of vote dilution, race-conscious districting, in and of itself,
would pose no legal problems. Only when carried to particular kinds of extremes,
as in Shaw, would distinctive constitutional issues arise. But Quilter is not
quite this transparent. The Court expressly reserved the question of whether
race-conscious redistricting per se might violate the Fourteenth or Fifteenth
Amendments. n68 Conceivably, then, the Court could hold that, while Ohio's
[*498] redistricting efforts do not violate the VRA, they do violate the
Constitution.
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n68. 113 S. Ct. at 1157-59.
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Yet, while legally possible, this result seems unlikely. The sitting Ohio
legislature is now composed through the electoral scheme Quilter upholds. If the
Court believed there were serious constitutional questions with the fundamental
structure of this scheme, the Court had numerous means to avoid permitting an
unconstitutionally composed legislature to assume power. Indeed, the parties
expressly asked the Court to decide the broad Fifteenth Amendment issue, but the
Court found extremely narrow grounds on which to resolve that claim. n69 The
Court could have asked the parties to address or reargue the Fourteenth
Amendment issue. We view the Court's reservation of the constitutional issues
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92 Mich. L. Rev. 483, *498 LEXSEE
as expressing the caution and tentativeness that characterizes the current
Court's approach to race, as well as the divisions within the Court itself. But
we take the tenor of Quilter as further evidence that a majority of the Court is
not prepared to find a general ban on race-conscious districting in the
Constitution.
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n69. Thus, the Court held that the district court had been clearly erroneous
in finding a race-conscious intent behind the districting plan and then stated,
"we express no view on the relationship between the Fifteenth Amendment and
race-conscious redistricting." 113 S. Ct. at 1159.
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Thus, Shaw does not appear to erect a general constitutional barrier to
intentionally race-conscious districting that has no dilutive effect. To be
sure, many more subtle questions remain regarding the precise circumstances
under which redistricting bodies and courts may take race into account -
remedially or affirmatively - when designing districts. We address these more
nuanced questions in Part V. But, at this stage, the important point is that
Shaw does not appear to rest on any general principle condemning race-conscious
districting. Although many initial reactions have neglected this side of Shaw,
n70 it is one of the decision's most significant aspects. Given that several
members of the current Court are resistant to state departures from the
color-blindness ideal in other contexts n71 and that Justices Marshall and
Brennan have retired, one might have thought the Court would [*499] revisit
the constitutionality of the race-conscious districting process that forms the
core of the VRA. After Shaw, however, five Justices do not appear to be prepared
to do so.
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n70. As might be expected, the immediate reaction in the popular press tended
to portray the decision in Shaw as a broad attack on race consciousness in
districting, indeed on the fundamental principles of the Voting Rights Act
itself. See, e.g., Max Boot, Supreme Court Rules that "Bizarre" Districts May Be
Gerrymanders, Christian Sci. Monitor, June 30, 1993, at 7 (Shaw "throws into
doubt the way the Justice Department has been enforcing the 1965 Voting Rights
Act, designed to guarantee minorities political representation."); Linda
Greenhouse, The Supreme Court: Reapportionment; Court Questions Districts Drawn
To Aid Minorities, N.Y. Times, June 29, 1993, at A1 ("A sharply divided Supreme
Court ruled today that designing legislative districts to increase black
representation can violate the constitutional rights of white voters."); Dick
Lehr, Court Casts Doubts over Race-Based Redistricting, Boston Globe, June 29,
1993, at 1 ("The US Supreme Court ... ruled yesterday that congressional
districts designed to give minorities a voting majority may be unconstitutional
....").
n71. See, e.g., Metro Broadcasting Inc. v. FCC, 497 U.S. 547, 602-31 (1991)
(O'Connor, J., dissenting); 497 U.S. at 631-38 (Kennedy, J., dissenting); City
of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
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92 Mich. L. Rev. 483, *499 LEXSEE
Instead, only those irregular districts that convey one particular
impression - or that are chosen on the grounds of one particular set of reasons
or motivations - implicate Shaw. The districting plan must be "so extremely
irregular on its face that it rationally can be viewed only as an effort to
segregate the races for purposes of voting"; n72 it must be "so bizarre on its
face that it is "unexplainable on grounds other than race.' " n73 Rather than
standing for any simple prohibition of "racial gerrymandering," Shaw
distinguishes two types of "racial gerrymanders." Some districts - highly
irregular ones - trigger the extreme demands of strict scrutiny; others raise no
special constitutional problem. In dissent, Justice White perfectly captured, we
believe, the decision's internal logic: Shaw holds that "race-conscious
redistricting that "segregates' by drawing oddly shaped lines is qualitatively
different from race-conscious redistricting that affects groups in some other
way." n74
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n72. Shaw v. Reno, 113 S. Ct. 2816, 2824 (1993).
n73. 113 S. Ct. at 2825 (quoting Village of Arlington Heights v. Metropolitan
Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).
n74. 113 S. Ct. at 2838 (White, J., dissenting).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Justice White means this description to be an ironic commentary on Shaw's
analysis, the exposure of a "logic" the mere expression of which immediately
indicts itself as incoherent. Those who must work with Shaw, however, will have
to find the principles the Court intended to drive this logic. What precisely
about these particular kinds of election districts poses unique constitutional
problems? What distinct injury do such districts cause?
2. Justifying District-Appearance Claims: The Relevance of Value Pluralism
Policymaking processes can be constitutionally flawed in at least three
different ways. They might reflect an unconstitutional purpose or, equivalently,
take a constitutionally impermissible factor into account. This danger is
addressed through constitutional doctrines focused on the search for legislative
motivation and purpose. Second, policymaking might take only legitimate factors
into account but give too little weight to constitutional rights or too much
weight to insubstantial governmental justifications for regulation. Balancing
tests re [*500] flect concern for the effects of these kinds of policy; such
tests typically evaluate whether the governmental justifications for regulation
are sufficiently appropriate and significant to justify the degree to which a
policy restrains a right. Because the first set of doctrines focuses on
purposes, while the second focuses on effects, these might be thought to exhaust
the basic modes through which constitutional law can appraise governmental
action. Yet there is a third, less familiar type of constitutional problem that
policies might raise; in some ways this problem shares concern for both purposes
and effects, but it arguably has a distinct logic of its own.
One might call this the problem of value reductionism in public policy. The
concern is not that policymakers have taken illegitimate factors into account,
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92 Mich. L. Rev. 483, *500 LEXSEE
nor is it precisely that a policy's effects on rights are too restrictive or not
sufficiently justified. Instead, the constitutional problem is better described
as the apparent corruption of a decisionmaking process. More broadly, it is the
apparent corruption of the public institutions that make their decisions in such
a way. When decisions reflect value reductionism, policymakers have transformed
a decision process that ought to involve multiple values - as a matter of
constitutional law - and reduced it to a one-dimensional problem. They have
permitted one value to subordinate all other relevant values. As a result, the
decisionmaking process appears tainted because it has become compromised through
unconstitutional oversimplification. Interestingly, the concern for public
perceptions ultimately seems central to constitutional doctrines that resist
value-reductionist public policy. The focus of these doctrines is not
impermissible purposes, for they need not be present, nor whether the effect of
policy is too great an intrusion on individual rights, but rather whether the
process of decisionmaking itself is constitutionally legitimate.
Shaw is best understood, we believe, as an opinion condemning value
reductionism. In the Court's view, the process of designing election districts
violates the Constitution not when race-conscious lines are drawn, but when race
consciousness dominates the process too extensively. Traditionally,
redistricting seeks to realize a plurality of values: to ensure effective
representation for communities of interest, to reflect the political boundaries
of existing jurisdictions, and to provide a district whose geography facilitates
efficient campaigning and tolerably close connections between officeholders and
citizens. n75 The inten [*501] tional use of race in this process, in
conjunction with continuing respect for these other values, does not pose a
constitutional problem. Under Shaw, race is not an impermissible factor that
corrupts the districting process - as long as it is one among many factors that
policymakers use.
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n75. Redistricting is, of course, among the most intensely partisan of all
policymaking, and those who control the process typically pursue the more
directly partisan values of trying to maximize their party's influence. In
addition, redistricters, including nonpartisan bodies, also frequently try to
protect incumbent officeholders. When the redistricting is partisan, one party's
incumbents may receive differential protection.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
When race becomes the single dominant value to which the process
subordinates all others, however, it triggers Shaw. For the Court, what
distinguishes "bizarre" race-conscious districts is the signal they send out
that, to government officials, race has become paramount and dwarfed all other,
traditionally relevant criteria. This view is the foundation of the qualitative
distinction central to Shaw: at a certain point, the use of race can amount to
value reductionism that creates the social impression that one legitimate value
has come to dominate all others.
In resisting the use of race in this specific way, Shaw requires that
redistricting continue to be understood - and, perhaps more importantly,
perceived n76 - as implicating multiple values. Public officials must maintain
this commitment to value pluralism, even when they legitimately and
intentionally take race into account.
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92 Mich. L. Rev. 483, *501 LEXSEE
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n76. See infra notes 91-95 and accompanying text.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
What precisely are the relevant public understandings concerning democratic
institutions that "bizarre" race-conscious districts might violate? Critically,
we might say Shaw elevates trivial concerns for "pretty" districts over
substantive values of effective minority representation. There are no "naturally
shaped" districts, so why should there suddenly be constitutional obstacles at
the extremes of the districting process?
One answer might be that the values extreme districts inappropriately
compromise are those of political community and political accountability. A
principal aim of territorial districting is to facilitate the representation and
interests of political communities. Compact districting is at best a proxy for
this goal, but to abandon compactness completely might be thought to denigrate
the importance of political community as a public value. In addition, because
compact districting is thought, at least traditionally, to enhance political
ties between representatives and constituents, abandoning compactness might be
thought to undermine the value of representation. n77
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n77. For one of the most extensive case law discussions of the values compact
districting serves, see Prosser v. Elections Bd., 793 F. Supp. 859, 863 (W.D.
Wis. 1992) (three-judge court; per curiam):
The objections to bizarre-looking reapportionment maps are not aesthetic (except
for those who prefer Mondrian to Pollock). They are based on a recognition that
representative democracy cannot be achieved merely by assuring population
equality across districts. To be an effective representative, a legislator must
represent a district that has a reasonable homogeneity of needs and interests;
otherwise the policies he supports will not represent the preferences of most of
his constituents. There is some although of course not a complete correlation
between geographical propinquity and community of interests, and therefore
compactness and contiguity are desirable features in a redistricting plan.
Compactness and contiguity also reduce travel time and costs, and therefore make
it easier for candidates for the legislature to campaign for office and once
elected to maintain close and continuing contact with the people they represent.
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[*502]
But this answer seems strained in the context of Shaw. If the question is
whether the oddly shaped District 12 undermines a sense of political
connectedness, unduly burdens those running for office, or weakens
representative-constituent ties, we might think state political institutions are
best positioned to answer it. Framed in these terms, the Court's concern might
seem paternalistic. Moreover, given that District 12 resulted in the election of
one of two of North Carolina's first black congressional representatives since
Reconstruction, concerns for political community and identifiable representation
might seem misplaced.
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92 Mich. L. Rev. 483, *502 LEXSEE
Perhaps a better answer would start with the view that, in the Court's eyes,
oddly shaped race-conscious districts compromise the values of political
integrity and legitimacy. While there may be no "natural district shapes,"
baseline expectations emerge from developed customs and practices. Social
understandings, including those concerning the legitimacy of political
institutions, are formed with reference to these developed practices. Except in
revolutionary moments, political legitimacy is, in part, a matter of compliance
with the internal standards of these developed practices. When political bodies
devise extremely contorted districting schemes, the violation of these standards
suggests politicians are engaged in manipulation of public institutions for
their own ends.
When race is added, the mix becomes more combustible and, in the Court's
view, the Constitution enters the picture. The concern seems to be that extreme
distortions in the (socially constructed) nature of territorial districting,
which result from race dominating all other districting values, pose the kind of
threat to political legitimacy that the Constitution recognizes. Democratic
theory might accommodate either proportional representation or territorial
districting. But, as Professors Daniel Polsby and Robert Popper's contribution
to this symposium suggests, trying to force the kinds of concerns a
proportional-representation system addresses into a territorial system
eventually stretches the latter to the breaking point. n78 Short of opting for
an interest-based system of representation, public understandings about
[*503] political legitimacy will reflect the nature of territorial
districting, as that form is understood. On this view, the failure to respect
value pluralism in territorial redistricting compromises the integrity and
legitimacy of the resulting institutions.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n78. Daniel D. Polsby & Robert D. Popper, Ugly: An Inquiry into the Problem
of Racial Gerrymandering Under the Voting Rights Act, 92 Mich. L. Rev. 652,
670-71, 676-78 (1993). This can be viewed as one of the central themes of Lani
Guinier's scholarship. See, e.g. Lani Guinier, Groups, Representation, and
Race-Conscious Districting: A Case of the Emperor's Clothes, 71 Texas L. Rev.
1589 (1993).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This account of Shaw's principles will no doubt leave the decision
controversial. In today's culture, we often cannot talk about "the" political
legitimacy of institutions, for legitimacy is frequently differential -
institutions legitimate from some groups' perspectives might not be from
others'. If the "highly irregular" District 12 was actually necessary to ensure
a second representative of the black community in North Carolina, that community
might well view the districting plan that included District 12 as more
legitimate than alternatives. Political legitimacy is also a nebulous concept,
into which it is all too easy to read one's own views. Nonetheless, the
legitimacy of representative institutions at least seems the kind of question
that is properly the concern of the Court - this concern is, after all, at the
foundation of the reapportionment revolution itself. n79 Shaw requires respect
for value pluralism as a means, it seems, of ensuring that constitutional
concerns for political legitimacy are not ignored or undermined in the process
of enhancing minority representation.
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92 Mich. L. Rev. 483, *503 LEXSEE
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n79. Gordon E. Baker coined the term reapportionment revolution. Gordon E.
Baker, The Reapportionment Revolution: Representation, Political Power, and the
Supreme Court (1966).
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Understood in this way, Justice O'Connor's opinion in Shaw resonates with
Justice Powell's opinion in Regents of the University of California v. Bakke.
n80 The preference-quota distinction similarly permits noninvidious uses of
race, as long as policymakers do not allow race to become - or appear to be -
paramount to all other relevant values. When Bakke was decided, some praised
this approach as "an act of judicial statesmanship" and "a very civilized
ruling." n81 Others asserted that the preference-quota distinction was at best
symbolic and at worst hypocritical - a distinction that reflected no principled
theoretical line and that had no functional significance for the way in which
academic institutions actually would make admissions deci [*504] sions. n82
Whatever the merits of these views, the distinction has had enough enduring
power so that, fifteen years later, it remains an important element in public
discourse about race. Virtually no public official endorses racial quotas, even
when advocating the preferential use of race. Perhaps Bakke is the sole cause of
this way of structuring public discourse; but, if the legal distinction had
indeed failed to capture something powerful among public perceptions, at least
in some quarters, perhaps it would not have had such a long life. n83
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n80. 438 U.S. 265 (1978).
n81. See Jerold K. Footlick et al., The Landmark Bakke Ruling, Newsweek, July
10, 1978, at 19, 20, 25 (quoting Alan Dershowitz as stating that Bakke was "an
act of judicial statesmanship"; A.E. (Dick) Howard as terming Bakke "a
"Solomonic' compromise"; Benno Schmidt, Jr., as calling the decision "just about
right"; and Charles Alan Wright terming Bakke "a very civilized ruling"); Bakke
Wins, Quotas Lose, Time, July 10, 1978, at 8, 9 (quoting Paul Freund as
believing the fuzziness of the decision was "a good thing").
n82. Cf. Ronald Dworkin, Taking Rights Seriously 223-39 (1977). See generally
Vincent Blasi, Bakke as Precedent: Does Mr. Justice Powell Have a Theory?, 67
Cal. L. Rev. 21 (1979) (developing arguments against the distinction).
n83. Despite the rhetoric of public officials, some recent polling data
suggest that individuals may not find a significant distinction between
preferences and quotas. At the time of the legislative debates over the Civil
Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, 1075-76 (1991)
(codified at 42 U.S.C. 2000e to 2000e-16 (Supp. III 1991)), one poll reported
that 88% of whites were opposed to "racial preferences," even in the absence of
"rigid quotas." Tom Kenworthy & Thomas B. Edsall, Whites See Jobs on Line in
Debate: Some Chicagoans Fear Reverse Bias, Wash. Post, June 4, 1991, at A1.
Public opinion polls on affirmative action, however, are notoriously sensitive
to the precise phrasing of questions and the context in which they are posed.
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92 Mich. L. Rev. 483, *504 LEXSEE
Methodologically, one can view both Shaw and Bakke as rejecting a
categorical, rule-oriented form of legal decision for a more contextualized,
standard-based approach. n84 Neither decision establishes a categorical rule
prohibiting intentional race consciousness. The relevant questions are ones of
degree: race can be used, but how much weight it is given in relation to other
values remains subject to searching judicial inquiry. This contextual approach
to constitutional adjudication that links Shaw and Bakke - this commitment to
viewing the Fourteenth Amendment as standing against value reductionism - can be
understood as an effort to seize and defend a legal middle ground between
logically coherent alternatives. At one pole is the principle of color
blindness. At the other is the principle of the preferential use of race to
enhance the political or economic position of previously disadvantaged
minorities. Each alternative rests on its own moral, sociological, and
ideological convictions, and many people believe law and policy must come to one
clear choice between those alternatives. Yet Shaw, like Bakke, opts for neither
option; rather, it sustains the tension between the two. The principle of Shaw
is that districters may intentionally take race into account, but only up to the
point at which they subordinate all other relevant values to it. Geography and
interest are both permissible grounds for constructing election districts, as
[*505] long as the districting process is not reduced to a single-dimensional
process in which interest appears to dominate overwhelmingly.
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n84. See, e.g., Frederick Schauer, The Rules of Jurisprudence: A Reply, 14
Harv. J.L. & Pub. Poly. 839 (1991); Kathleen M. Sullivan, Foreword: The Justices
of Rules and Standards, 106 Harv. L. Rev. 22 (1992).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In considering whether the Court is right to be concerned about value
reductionism in public policy, n85 in Shaw or elsewhere, it might be helpful to
recall the analysis of complex value choices that Professors Guido Calabresi and
Philip Bobbitt offer in Tragic Choices. n86 In their analysis, societies that
endorse a plurality of values, all of them fundamental, must necessarily
confront situations of profound value conflict. Faced with such a conflict,
society may simply choose to adopt policies that endorse one value over the
others at stake. This approach, however, entails rejecting decisively some
values that are, and ought to be, considered fundamental. As an alternative,
therefore, societies might seek institutions and methods of reaching decisions
that preserve the social and political understandings through which they
recognize all the values in conflict as fundamental and enduring. One
possibility is that public decisions can cycle between preferences for the
different values at stake. Alternatively, policymakers might accommodate certain
values up to a point, but stop short of following them to their logical
conclusion, as a way of signaling respect for countervailing values. n87
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n85. Even if this concern is appropriate in evaluating policy for some
purposes, whether courts should interpret particular provisions of the
Constitution to embody such concerns is a distinct question. The analysis of
that question requires close attention to the text, history, purposes, and prior
interpretations of particular provisions - a task this article does not
undertake.
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92 Mich. L. Rev. 483, *505 LEXSEE
n86. Guido Calabresi & Philip Bobbitt, Tragic Choices (1978).
n87. Calabresi and Bobbitt term these a "strategy of successive moves," id.
at 195, but the language of strategy might suggest a greater role for conscious
intent and choice than is warranted. In healthy societies, the effect of the
complex mix of public institutions and actors involved in policymaking may be to
mediate these fundamental value conflicts through producing outcomes that
oscillate between the relevant values, even when no particular actor intends
such a result and when institutions are not specifically designed to produce
this pattern of outcomes.
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From a certain perspective, these decisions will look inconsistent, or
unprincipled, or like compromises having little logical foundation. Indeed, more
formal or analytic evaluations of policymaking often generate just such
criticisms. n88 But this kind of fuzzy logic in the public sphere may be a
healthy means through which societies embracing [*506] pluralistic values of
fundamental significance address tragic choices - they sustain the tension
between conflicting values, rather than allowing circumstances to force them
finally to endorse one fundamental value over another. By avoiding
value-reductionist approaches when such values clash, public decisions can help,
in the words of Calabresi and Bobbitt, "preserve the moral foundations of social
collaboration." n89
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n88. For example, Arrow's Theorem reveals that, in theory, public
decisionmaking processes cannot be designed in ways that are fair and that
preclude the possibility that decisions will cycle among various options (at
least under conditions of significant social conflict). Based on this discovery,
some scholars indict collective decisionmaking institutions for being unable to
guarantee consistent policy outcomes. In contrast, one of us has argued that
this kind of cycling might be a healthy means of sustaining the tension between
fundamental values, rather than a weakness of democratic institutions. See
Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social
Choice Theory, Value Pluralism, and Democratic Politics, 90 Colum. L. Rev. 2121,
2171-75 (1990). As Calabresi and Bobbitt put it, "a society may limit the
destructive impact of tragic choices by choosing to mix approaches over time."
Calabresi & Bobbitt, supra note 86, at 196.
n89. Id. at 18.
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If Shaw is to be justified, we believe the justification must proceed along
these lines. On any other terms, Shaw's effort to distinguish race-conscious
districting that produces bizarrely shaped districts from that which produces
more familiar districts is difficult to comprehend. As the dissenters
persuasively argue, one does not involve a more invidious use of race than the
other, nor does one differ meaningfully from the other in its effect on
individuals' voting rights. Carrying legal analysis to its logical extreme,
however, may not be the most important task of the Supreme Court - at least as
judges such as Justices O'Connor and Powell understand the functions of the
Court and, perhaps, of law itself. Shaw rests on the view that, in certain
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92 Mich. L. Rev. 483, *506 LEXSEE
areas, the Court's role in construing the Constitution should be to require
policymakers to accommodate and sustain the tension between conflicting values,
rather than to permit one important value to subordinate all others.
3. Expressive Harms as Constitutional Injuries
To appreciate this interpretation of Shaw, however, is not yet to grasp the
precise harm that the Shaw Court believes this value reductionism causes. Allan
Bakke could allege the harm of being denied the right to compete on equal terms
for medical school admission - an alleged harm that is concrete, individualized,
and material. But, because no North Carolina voters had their voting power
diluted, one cannot say a similar injury occurred. Even a districting process
that involves the kind of value reductionism we have described does not result
in tangible, individualized harm, the kind of harm traditionally considered
necessary to create standing. n90 To understand and apply Shaw, then, we must
link the Court's evident concern with value reductionism to a different
conception of harm.
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n90. See infra note 105 and accompanying text (discussing "irreducible
minimum" in the standing context).
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One can only understand Shaw, we believe, in terms of a view that what we
call expressive harms are constitutionally cognizable. An expressive harm is one
that results from the ideas or attitudes expressed [*507] through a
governmental action, rather than from the more tangible or material consequences
the action brings about. On this view, the meaning of a governmental action is
just as important as what that action does. Public policies can violate the
Constitution not only because they bring about concrete costs, but because the
very meaning they convey demonstrates inappropriate respect for relevant public
values. On this unusual conception of constitutional harm, when a governmental
action expresses disrespect for such values, it can violate the Constitution.
Concern for expressive harms focuses on the interpretive dimension of public
action. This is the dimension along which such injuries lie, for expressive
harms are violations of public understandings and norms. In the language of
Robert Cover, "we inhabit a nomos - a normative universe." n91 Judicial
validation of expressive harms reflects concern for the way in which public
action can cause injury precisely by distorting or undermining this nomos. The
harm is not concrete to particular individuals, singled out for distinct
burdens. The harm instead lies in the disruption to constitutionally
underwritten public understandings about the appropriate structure of values in
some arena of public action.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n91. Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and
Narrative, 97 Harv. L. Rev. 4, 4 (1983).
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92 Mich. L. Rev. 483, *507 LEXSEE
Expressive harms are therefore, in general, social rather than individual.
Their primary effect is not as much the tangible burdens they impose on
particular individuals, but the way in which they undermine collective
understandings. Governmental action might be thought to implicate these
understandings in two ways. When government acts, it must interpret relevant
collective understandings insofar as they constrain or guide policymakers. But
public action and collective understandings exert a mutually reciprocal
influence. Government action does not merely reflect such understandings; it
also shapes and reconstitutes them. Governmental actions can express - and
therefore perhaps sustain - a reaffirmation or a rejection of these norms. A
concern for expressive harms under the Constitution is a concern for precisely
these less material, less individualized effects of state action.
If courts grant expressive harms constitutional recognition, they must then
engage in exquisitely difficult acts of interpretation. For the material to be
interpreted is not a legal text, but the expressive significance or social
meaning that a particular governmental action has in the specific historical,
political, and social context in which it takes [*508] place. The quest is
not for the intent or purpose behind legislation, at least as those concepts
have traditionally been understood; the issue is not what policymakers might
subjectively have had in mind or desired. What matters is the social message
their action conveys or, less positivistically, the message courts perceive the
action to convey. This approach requires courts to attribute a likely social
meaning to the action, rather than to discover the subjective intent behind it.
n92 Such exercises of judicial judgment are fraught with complexity and unlikely
to yield determinate, single right answers. But courts have not found these
potential problems to be reason enough to abandon all judicial concern for
expressive harms.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n92. Actual intent, to the extent knowable, might be relevant evidence, but
it is not the ultimate question at issue.
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This analysis might sound unfamiliar and obscure. Shaw, however, becomes
intelligible only if one recognizes that it rests on just this concern for
expressive harms. Shaw validates such harms as constitutionally cognizable,
along with more familiar, concrete, material injuries. Indeed, close attention
to the language of Justice O'Connor's opinion reveals a constant struggle to
articulate exactly these sorts of expressive harms. Thus, the opinion is laden
with references to the social perceptions, the messages, and the governmental
reinforcement of values that the Court believes North Carolina's districting
scheme conveys. n93 There is simply no way to make sense of these references,
which give the opinion its character and are central to its holding, [*509]
without recognizing that the decision is grounded in concern for expressive
harms. This conception of constitutionally cognizable harms explains why the
Court is adamant that "reapportionment is one area in which appearances do
matter." n94 If they do, it must be because, even apart from any concrete harm
to individual voters, such appearances themselves express a value structure that
offends constitutional principles.
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92 Mich. L. Rev. 483, *509 LEXSEE
n93. Among the passages in which the Court emphasizes social perceptions, the
messages the districting plan conveys, and the way in which the plan is likely
to affect collective understandings are the following:
(1) "The message that such districting sends to elected representatives is
equally pernicious."
(2) "When a district obviously is created solely to effectuate the perceived
common interests of one racial group, elected officials are more likely to
believe that their primary obligation is to represent only the members of that
group, rather than their constituency as a whole."
(3) "The plan is so highly irregular that, on its face, it rationally cannot
be understood as anything other than an effort to "segregate ... voters' on the
basis of race."
Shaw v. Reno, 113 S. Ct. 2826, 2826-27 (1993) (quoting Gomillion v. Lightfoot,
364 U.S. 339, 341 (1960)).
Note also the frequent references to "reinforcing perceptions," or
"reinforcing beliefs," as in the following:
(4) "The plan reinforces racial stereotypes and threatens to undermine our
system of representative democracy by signaling to elected officials that they
represent a particular racial group rather than their constituency as a whole."
113 S. Ct. at 2828.
Similarly, notice the Court's use of the language of "offense," which is
commonly associated with expressive concerns:
(5) "The reapportionment plan is alleged to be so irrational on its face that it
immediately offends principles of racial equality."
113 S. Ct. at 2829.
These passages and others, central to the opinion, are most convincingly
explained only by recognizing that it is expressive harms that concern the Court
in Shaw.
n94. 113 S. Ct. at 2827.
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Shaw therefore rests on the principle that, when government appears to use
race in the redistricting context in a way that subordinates all other relevant
values, the state has impermissibly endorsed too dominant a role for race. n95
The constitutional harm must lie in this endorsement itself: the very expression
of this kind of value reductionism becomes the constitutional violation. The
justification for this result might rest on the intrinsic ground that the
endorsement is wrong, in and of itself; alternatively, the justification might
rest on the instrumental ground that this state endorsement threatens to reshape
social perceptions along similar lines.
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92 Mich. L. Rev. 483, *509 LEXSEE
-
n95. Vincent Blasi suggests that a similar, expressively oriented rationale
provides the best explanation for Justice Powell's opinion in Bakke, although
Blasi focuses primarily on the instrumental, rather than the intrinsic,
justifications for such a rationale. Blasi, supra note 82, at 59 ("Perhaps
Powell is saying that appearances are what matter most because the critical
value is the longrun diminution of racial prejudice throughout the society and,
depending on how they are perceived by the public, different race-conscious
programs may have quite different effects on the racial attitudes of the
populace."). Blasi then criticizes such an approach to constitutional doctrine
on the familiar grounds that purported social perceptions are too uncertain a
basis for constitutional doctrine. Id. at 60. In addition, he argues that
responding to these perceptions by purporting to distinguish between
race-as-one-factor and race-as-a-dominant-factor entails public hypocrisy, which
Blasi views as "inevitably ... corrupting." Id.
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In either case, Shaw depends crucially on judicial recognition of expressive
harms under the Fourteenth Amendment. n96 This concep [*510] tion of
constitutional harm is intriguing and undoubtedly controversial. To describe and
evaluate it in detail would require considerable space. For present purposes, we
merely note three brief features of this conception.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n96. A similar idea underlies Charles Lawrence's revisionist account of Brown
v. Board of Educ., 347 U.S. 483 (1954), an account that Lawrence then uses to
argue for the constitutionality of regulating racist speech. See Charles R.
Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990
Duke L.J. 431. Lawrence argues that school segregation was unconstitutional
precisely because of its expressive dimension or its cultural meaning. "Brown
held that segregated schools were unconstitutional primarily because of the
message segregation conveys - the message that black children are an untouchable
caste, unfit to be educated with white children." Id. at 439. In Lawrence's
view, Brown therefore stands for the principle that "the systematic group
defamation of segregation be disestablished," id. at 441, and that "Brown is a
case about group defamation." Id. at 463. To reach this conclusion, he argues
that the "non-speech elements of school segregation were by-products of the main
message rather than the message simply a by-product of unlawful conduct." Id. at
441.
This emphasis on cultural meanings as legally cognizable harms captures an
important and neglected aspect of Brown and constitutional doctrine more
generally. At the same time, Brown might exemplify this point less sharply than
other examples. In Brown, the Court accepted lower court findings that "
"tangible' factors" were equal between the white and black schools at issue but
relied on inequalities in "intangible considerations." 347 U.S. at 492-93.
Moreover, the Court cannot have been unaware of the process by which states
scrambled to bring particular black schools up to equivalent standards as they
became subject to litigation. Brown might well be justified as a means of
ensuring, without the need for case-by-case litigation, that state resources for
education would not be discriminatorily allocated. See Geoffrey R. Stone et al.,
Constitutional Law 503 (2d ed. 1991) (asking whether pre-Brown doctrine, "by
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92 Mich. L. Rev. 483, *510 LEXSEE
requiring the courts to evaluate the level of "equality' in thousands of
segregated school systems throughout the country, might have produced an even
more serious judicial intrusion on the political branches than Brown").
As a more elemental illustration, consider instead segregation in public
accommodations, such as movie theaters. In this case there can be little claim
of comparatively disadvantageous allocation of material benefits between white
and black viewers; both groups see the identical movie, albeit from different
physical locations. Even if we imagine a situation in which the seating
locations did not reflect a social hierarchy (as they do when whites sit in
front, blacks in the back or the balcony), such a state-mandated seating
distribution along racial lines would surely violate the Constitution. In these
contexts, the only reason that the seating segregation is illegal and immoral
must be because of its expressive significance or, in Lawrence's words, its
cultural meaning.
Lawrence goes on to argue that, if the only reason for regulating conduct is
its expressive dimension, then the expression itself can be directly regulated.
This is a far more controversial step. For Lawrence's response to criticisms
that this move fails to respect the basic First Amendment distinction between
conduct and speech, see Lawrence, supra, at 440-44.
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a. Legal recognition of expressive harms. Though this conception of harm
might at first appear unfamiliar and vague, it is implicitly recognized in many
areas of law and public policy. The general distinction between intentional and
accidental harms is the most routine example. In torts and criminal law, an
intentional and a negligent battery might cause the same quantum of physical
injury. Yet common and criminal law understandably treat the former as far more
serious. Even if they cause the same objective level of physical injury, the law
considers these to be two distinct actions; the distinction rests in the
different attitude that an intentional harm expresses toward social norms of
individual integrity. Conceivably, the more serious sanctions for intentional
harms might be justified as necessary to create optimal deterrence of such
actions. But, even apart from incentive-altering calculations, the attitudes
expressed through conduct intentionally designed to injure pose a greater
challenge to the normative structure underlying social order. The greater
challenge such conduct expresses requires a commensurately greater response in
the legal sanctions applied - independent of deterrence rationales for greater
sanctions. Intentional harms are morally more offensive than accidental ones,
and the law reflects this difference in moral evaluation.
For a more interesting and complex example of the difference between
expressive and consequential conceptions of harm, consider sentence enhancements
for bias-motivated crimes, at issue last Term in Wisconsin v. Mitchell. n97 From
a consequentialist perspective, we [*511] might argue that greater penalties
are required to provide greater deterrence. Perhaps these crimes are more
common, or perhaps they are more likely to incite retaliatory responses. But, on
an expressivist logic, we might argue greater penalties are required because a
different, and more threatening, social meaning attaches to the assault. From
this perspective, beating up a black man because he is black is a different
action, with a different social meaning, than an ordinary assault. The
difference between these two forms of justification - consequential and
expressive - reflects and shapes collective understandings of why we adopt
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92 Mich. L. Rev. 483, *511 LEXSEE
such measures. In addition, some might believe the constitutionality of such
measures, under the First Amendment, depends on whether they are justified on
one or the other type of logic. The most important point, though, is that much
conduct, like hate crimes, has both an expressive and a consequential dimension;
action reveals certain attitudes as well as causing more tangible injuries.
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n97. 113 S. Ct. 2194 (1993).
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This point can be generalized. Actions of all sorts - public and private,
collective and individual - express certain values as well as bring about
certain consequences. n98 Actions both "do" something and "mean" something; at
the same time that they bring about certain consequences, they also express some
set of values and normative attitudes. Although we do not ordinarily articulate
legal harms in these ways, law and policy often, if implicitly, respond to this
meaning-making or expressive dimension of actions.
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n98. Of course, expressive and consequential effects are both effects or
outcomes of policies. Part of what an action means is what it does. But it is
helpful to observe the difference between these two dimensions of action. The
labels are consistent with their usage in contemporary philosophy, but the
semantic question of what labels are most helpful to capture the difference is
not important. Whether we talk about the expressive dimensions of an action, its
social meaning, or its symbolic significance, the crucial point is that actions
both express values and attitudes as well as bring out more material
consequences.
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In trying to find the right language to capture this legal concern for
expressive harms, we might say that intentional and accidental batteries, or
hate crimes and ordinary assaults, are two different actions. Or we might say
they are the same action in their material dimension, but distinct in their
expressive dimension. Nothing of substance, however, ought to turn on the formal
way in which we classify the relationship between an action and its meaning. For
action, meaning, and aim are mutually defining, both in social fact and, often,
in law and policy.
b. Expressive harms in other areas of constitutional doctrine. Second, the
Court has recognized constitutionally cognizable expressive harms in other
doctrinal areas, though without using these specific terms. The most striking
example is the emergence in recent years of [*512] the "endorsement test"
under the Establishment Clause. n99 The idea that the First Amendment bans state
"endorsement" of religion rests, like Shaw, on a concern for social perceptions;
on the perceived meaning of government policies; and on the view that the
Constitution reaches not just material harms, but expressive ones. The explicit
language with which courts have framed the "endorsement test" is grounded on the
same concerns as those central to Shaw. Thus, Justice O'Connor has argued that
the problem with a state endorsement of religion, for example, is that it "sends
a message to nonadherents that they are outsiders, not full members of the
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92 Mich. L. Rev. 483, *512 LEXSEE
political community, and an accompanying message to adherents that they are
insiders ...." n100 In her analysis, the "endorsement test" invalidates
government practices that create a perception that the government is endorsing
or disapproving of religion. n101 These concerns for social perceptions,
messages, and governmental endorsements of values are central whenever
expressive harms are at issue.
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n99. This test first emerged in Justice O'Connor's concurrence in Lynch v.
Donnelly, 465 U.S. 668 (1984). Justice O'Connor developed it in subsequent
separate opinions, and Supreme Court majority opinions have invoked the "no
endorsement" idea with approval. See, e.g., Edwards v. Aguillard, 482 U.S. 578,
585-86 (1987). For a history of the development of this test in an article
otherwise critical of it, see Steven D. Smith, Symbols, Perceptions, and
Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86
Mich. L. Rev. 266, 268-76 (1987).
n100. Lynch, 465 U.S. at 688 (O'Connor, J., concurring) (emphasis added).
n101. 465 U.S. at 688-93 (O'Connor, J., concurring). In Wallace v. Jaffree,
472 U.S. 38 (1985), Justice O'Connor elaborated on two questions that are
difficult for all constitutional doctrines focused on expressive harms: how
courts might determine "the" social perception of a policy, and from what
perspective courts ought to make this interpretive judgment when, as is often
likely, no unitary perception exists. 472 U.S. at 73-76 (O'Connor, J.,
concurring). Thus, she argued that the relevant perceptions are those of an
"objective observer" familiar with the text, legislative history, and
implementation of the law in question, as well as the values recognized in the
religion clauses of the Constitution. 472 U.S. at 76, 83 (O'Connor, J.,
concurring); see also Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 346-49 (1987) (O'Connor, J.,
concurring) (elaborating upon the "objective observer" perspective); Estate of
Thorton v. Caldor, Inc., 472 U.S. 703, 711-12 (1985) (O'Connor, J., concurring)
(same).
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That Justice O'Connor is both the author of Shaw and the originator of the
"endorsement test" lends credence to the view that one cannot understand Shaw
except in terms of concern for expressive values in the area of race and
redistricting. To be sure, some commentators have embraced the Establishment
Clause "endorsement test" with enthusiasm, n102 while others have found it
vague, empty, or unadministrable. n103 Any effort to recognize expressive harms
through constitutional doctrine must address these kinds of concerns. Despite
[*513] these problems, however, judicial concern for expressive harms is
demonstrably a pervasive and long-enduring feature of constitutional doctrine
and disagreements. n104
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n102. For an exhaustive summary of favorable commentary on the "endorsement
test," see Smith, supra note 99, at 274 n.45.
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92 Mich. L. Rev. 483, *513 LEXSEE
n103. See, e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59
U. Chi. L. Rev. 115, 147-57 (1992); Smith, supra note 99.
n104. For an effort to show that much constitutional doctrine and
disagreement turns on whether one understands substantive constitutional
provisions as recognizing expressive harms, in addition to more material ones,
see Richard H. Pildes, Competing Conceptions of Value in Constitutional Law:
Expressive and Consequential Harms (Dec. 1, 1992) (unpublished manuscript, on
file with author).
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c. Standing and expressive harms. In much of constitutional law, both
substantive and procedural doctrines require that harms be individuated before
they become judicially actionable. n105 Indeed, the current Court has
reinvigorated these requirements in recent years, requiring that plaintiffs
distinguish their claims from "a generally available grievance about government
- claiming only harm to their and every citizen's interest in proper application
of the Constitution and laws, and seeking relief that no more directly and
tangibly benefits them than it does the public at large." n106 As a result, the
Court has rejected claims that "abstract stigmatic injuries" can be judicially
cognizable. n107
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n105. The law of standing is a notable example of this type of procedural
doctrine. The Court recently restated the "irreducible minimum" that is required
for standing under Article III:
A party seeking to invoke a federal court's jurisdiction must demonstrate three
things: (1) "injury in fact," by which we mean an invasion of a legally
protected interest that is "(a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical," (2) a causal relationship between
the injury and the challenged conduct, by which we mean that the injury "fairly
can be traced to the challenged action of the defendant," and has not resulted
"from the independent action of some third party not before the court," and (3)
a likelihood that the injury will be redressed by a favorable decision, by which
we mean that the "prospect of obtaining relief from the injury as a result of a
favorable ruling" is not "too speculative."
Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of
Jacksonville, 113 S. Ct. 2297, 2301-02 (1993) (quoting Lujan v. Defenders of
Wildlife, 112 S. Ct. 2130, 2136 (1992); Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 41-42 (1976); Allen v. Wright, 468 U.S. 737, 752 (1984),
respectively); see Cass R. Sunstein, What's Standing After Lujan? Of Citizen
Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163 (1992) (discussing
modern standing jurisprudence); see also Harold J. Krent & Ethan G. Shenkman, Of
Citizen Suits and Citizen Sunstein, 91 Mich. L. Rev. 1793 (1993) (responding to
Sunstein's analysis of standing).
n106. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2143 (1992).
n107. See, e.g., Allen v. Wright, 468 U.S. 737, 755 (1984) (rejecting the
idea that stigmatic harm to a racially defined group gives an individual member
of that group standing); see also Antonin Scalia, The Doctrine of Standing as
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92 Mich. L. Rev. 483, *513 LEXSEE
an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881,
881-82 (1983) ("Courts need to accord greater weight than they have in recent
times to the traditional requirement that the plaintiff's alleged injury be a
particularized one, which sets him apart from the citizenry at large.").
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Yet, when courts recognize expressive harms, this traditional requirement of
individualized harm comes under considerable pressure. Expressive harms focus on
social perceptions, public understandings, and messages; they involve the
government's symbolic endorsement of certain values in ways not obviously tied
to any discrete, individualized harm. A significant tension, therefore, exists
between recognition [*514] of expressive harms and traditional requirements
of individualized wrongs. n108
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n108. For example, in the electoral context, the more traditional conception
of standing recently led to dismissal of the constitutional challenge to the
seating of Alcee Hastings as representative of Florida's 23d congressional
district. Waggoner v. Hastings, 816 F. Supp. 716 (S.D. Fla. 1993). Hastings, a
federal district judge who had been impeached, convicted, and removed from
office, was subsequently elected to Congress. A plaintiff challenged his seating
on the ground that the Constitution's impeachment provisions disqualified
Hastings from holding any office under the United States. U.S. Const. art. I, 3,
cl. 7 reads:
Judgment in Cases of Impeachment shall not extend further than to removal from
Office, and disqualification to hold and enjoy any Office of honor, Trust or
Profit under the United States: but the Party convicted shall nevertheless be
liable and subject to Indictment, Trial, Judgment and Punishment, according to
Law.
The plaintiff, however, was registered to vote not in the 23d district, but in
an adjoining one. He nonetheless asserted a generalized interest in having only
constitutionally qualified officials representing Florida. Although the court
found "an appeal to the logic of the plaintiff's argument about an interest of a
citizen in having lawfully qualified representatives," the court dismissed the
complaint for lack of standing. 816 F. Supp. at 718. The standing holding
appears to be an alternative holding because the court also went on to find the
claim nonjusticiable on other grounds. 816 F. Supp. at 720. This result reflects
not only the traditional requirement of concrete and particularized injury, but
the narrowness with which courts have conceptualized legal injury in the
electoral context.
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In Shaw, the Court avoided confronting the tension between these traditional
requirements and its conception of expressive harm. Given the "special harms"
n109 Shaw recognizes, perhaps any voter in North Carolina - not just those in
District 12 and not just those who are white - can legitimately claim to suffer
these harms and hence to have standing. In other contexts involving
race-conscious policy, blacks do not have legal standing to challenge policies
that purportedly benefit them as a group; the fact that some blacks might view
an affirmative action policy, for example, as stigmatizing or as
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92 Mich. L. Rev. 483, *514 LEXSEE
essentializing black identity is not the kind of harm that grounds legal
standing. Only those disadvantaged in more material and particularized ways
suffer the kind of injury necessary for judicial assessment of their claims.
Hence, the plaintiffs in affirmative action cases are white individuals or
white-owned businesses. Yet the very theory on which Shaw was litigated and
decided appears to embrace a much broader conception of legal injury. The
complaint, for example, refused to state the race of the plaintiffs and refused
to allege the concrete and particularized injury of vote dilution. Instead, the
plaintiffs pleaded a right to participate in a color-blind electoral process.
n110 If this is the right at stake, all North Carolina voters might be thought
to be injured in the same way and to the same extent.
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n109. Shaw v. Reno, 113 S. Ct. 2816, 2828 (1993).
n110. 113 S. Ct. at 2824.
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To bring this claim closer to traditionally recognized ones of
individualized harm, the district court rewrote the complaint by taking
[*515] judicial notice that the plaintiffs were white voters. n111 The Supreme
Court then reinterpreted the plaintiffs' legal theory before endorsing it: the
claim became a challenge to "legislation so extremely irregular on its face that
it can rationally only be viewed as an effort to segregate the races for
purposes of voting, without regard for traditional districting principles and
without sufficiently compelling justification." n112 Even so, if the way the
legislation is "viewed" is the harm, any North Carolina voter might be similarly
positioned and hence equally entitled to standing.
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n111. 113 S. Ct. at 2822.
n112. 113 S. Ct. at 2824.
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Justice Souter indirectly pressed this issue by arguing that, absent vote
dilution, race-conscious districting involves no constitutional harm. n113 The
Court's response revealed just how nonindividualized is the expressive harm
central to Shaw:
As we have explained, however, reapportionment legislation that cannot be
understood as anything other than an effort to classify and separate voters by
race injures voters in other ways. It reinforces racial stereotypes and
threatens to undermine our system of representative democracy by signaling to
elected officials that they represent a particular racial group rather than
their constituency as a whole. Justice Souter does not adequately explain why
these harms are not cognizable under the Fourteenth Amendment. n114
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92 Mich. L. Rev. 483, *515 LEXSEE
-
n113. 113 S. Ct. at 2847 (Souter, J., dissenting).
n114. 113 S. Ct. at 2828 (citations omitted).
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The Court, however, does not adequately explain why these harms are not
generalized ones, the kinds of harms for which generalized standing to sue would
be appropriate. Indeed, although the conceptions of cognizable harm and standing
are directly linked - and standing is both a jurisdictional question and, in
part, a constitutional one - the Court leaves issues of standing unaddressed.
n115 The point [*516] here is that tension exists between the underlying but
implicit theory of Shaw and established legal principles, such as those
reflected in standing doctrine. There may be principled ways of resolving this
tension, but the Court does not confront the conflict or acknowledge it.
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n115. The closest the Court comes to resolving the tension between
traditional standing principles and the expressive harms Shaw recognizes is when
the Court intimates that the voters in a particular "bizarre" district
experience these harms distinctly: "When a district obviously is created solely
to effectuate the perceived common interests of one racial group, elected
officials are more likely to believe that their primary obligation is to
represent only the members of that group, rather than their constituency as a
whole." 113 S. Ct. at 2827. The notion here appears to be that seemingly
single-valued redistricting runs the danger of constructing an inappropriate, or
antiliberal, conception of the relationship between representation and community
in a particular district. In many other passages, however, the Court describes
the harms in ways that are not district specific. See, e.g., 113 S. Ct. at 2830
("Nothing in the Court's precedents precludes white voters (or voters of any
other race) from bringing the analytically distinct claim that a reapportionment
plan rationally cannot be understood as anything other than an effort to
segregate citizens into separate voting districts on the basis of race without
sufficient justification.") (emphasis added). Even on the narrowest reading,
passages like these seem to imply a standing principle broad enough at least to
permit any voter in a "bizarre" district to sue. Nevertheless, the question
remains whether this kind of geographic standing limitation is consistent with
the logic of the expressive harms the Court recognizes.
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4. Social Perceptions Versus the "Actual Facts"
Thus far, we have assumed that the North Carolina General Assembly's purpose
in designing District 12 was to create a second majority-black district in the
state. On this view, the aim of creating a minority district was "the" cause of
the "bizarre" district shape. n116 The social perception of this "fact" seems,
at bottom, to be the foundation on which the decision rests. n117
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92 Mich. L. Rev. 483, *516 LEXSEE
n116. We do not explore in detail more subtle causation questions, such as
whether the impermissible cause with which Shaw is concerned must be merely a
contributing cause, the dominant cause, or the exclusive cause for a particular
district's design. For further discussion, see infra text accompanying notes
251-52.
n117. Citizens exposed to the plan will find it "so irrational on its face
that it immediately offends principles of racial equality." 113 S. Ct. at 2829.
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The central concern of Shaw is this social perception. Seen in this way,
Shaw offers a story about the corruption of politics by race consciousness, at
least when the latter is carried to extremes. On this view, politicians use
civil rights policy, through the pressure the VRA puts on the redistricting
process, to manipulate and distort political institutions - or, more precisely,
the VRA is being used in ways that create the social perception that this
manipulation is taking place.
When the facts are examined from another vantage point, however, Shaw might
expose a quite different story. As in many redistricting battles, with their
boiling cauldrons of partisan, personal, interest-group, fair representation,
and other motivations, reconstructing the reasons behind North Carolina's
actions at each stage is no easy task. The record suggests both a "stronger" and
a "weaker" view of the actual facts, and, on either account, Shaw is yet more
complex.
a. The strong view of the facts. Recall that the Attorney General objected
to North Carolina's initial redistricting plan on the ground that the VRA
required creation of a second minority district, which he suggested could be in
the southeastern part of the state. The "strong" interpretation of the facts
takes this assessment as correct and assumes that such a district, reasonably
compact, could indeed have been created. The Court appeared to assume this view,
although it did not address the question directly, and the lower court made no
formal finding to this effect. n118 Yet, if this is the assumption on which Shaw
is [*517] decided, what Shaw would reveal is not the manipulation of
politics by race, but the manipulation of race by politics.
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n118. There is no way to prove that this assumption underlies the Court's
approach to the case, for the Court made no formal finding or statement to this
effect, but the atmosphere of the opinion strongly suggests that the Court
believed North Carolina had defiantly rejected the Justice Department's
suggestion in order to pursue state political agendas. For example, the Court
referred twice to the fact that "the Attorney General suggested that North
Carolina could have created a reasonably compact second majority-minority
district in the south-central to southeastern part of the State," 113 S. Ct. at
2832, including in the very last paragraph of the opinion, when the Court is
recapping the most important elements of the case to define the decision's basic
principles. 113 S. Ct. at 2820, 2832. In addition, one of the dissenting
opinions explicitly rests on the assumption that the state could have drawn a
reasonably compact minority-dominated district, most likely in the southeastern
part of the state, as the Attorney General had suggested. See 113 S. Ct. at 2841
n.10 (White, J., dissenting). Thus, the "strong" version of the facts most
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92 Mich. L. Rev. 483, *517 LEXSEE
likely informed the Court's internal discussions and the Justices' individual
deliberations.
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On this strong reading of the facts, North Carolina could have complied by
drawing a reasonably compact minority-dominated district, but it made a
deliberate choice not to do so. Yet, on this view, the reasons behind the design
of District 12 would have nothing to do with race - and everything to do with
protecting incumbent congressmen and seeking partisan political advantage. Faced
with a range of choices for creating a second minority district, including a
reasonably compact one, the General Assembly made the choice it did for its own
reasons. As several Justices appear to have assumed, those reasons were
incumbent protection and partisan advantage. n119 On this assumption, however,
political reasons, not concerns involving race, would be the cause or purpose
behind the design of District 12.
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n119. See supra note 118.
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At this point, notice that the case would then actually present a conflict
between social perceptions and political realities. To restate, the actual
reason District 12 appears "bizarre" is that it was designed to protect
incumbents and enhance Democratic control of the state's congressional
delegation. n120 Once the Justice Department's objection was lodged, North
Carolina was obliged to create a second majority-minority district; but the
final shape and location of that district traces to political, not racial,
factors. Analytically, we might say two governmental decisions are involved. The
first, from the Justice Department, was that North Carolina had to create a
second majority-minority district (Decision A); the second, from the North
Carolina General Assembly, was where to locate this district (Decision B). Race
was a motivating or dominant factor for Decision A, but not Decision B.
[*518] From the set of possible majority-minority districts, North Carolina
selected District 12 on political, not racial, grounds.
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n120. See supra note 118. In other litigation, plaintiffs did allege that
North Carolina's rejection of a majority-black district in the southern region
of the state in favor of District 12 was the result of political gerrymandering
motivated by the desire to protect Democratic incumbents. A three-judge court
dismissed that suit, Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992), and the
Supreme Court summarily affirmed. Pope v. Blue, 113 S. Ct. 30 (1992).
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If this "strong" version of the facts is true, two important points follow.
First, the North Carolina districting story would reveal the way in which
politicians have come to use civil rights and the VRA as a screen; while going
to Machiavellian lengths to protect their seats and pursue their partisan
agendas, politicians claim "the Voting Rights Act made me do it." This is
self-interest masquerading as race consciousness. Political actors thus
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92 Mich. L. Rev. 483, *518 LEXSEE
encourage social perceptions that government has been captured by extremism in
the name of race. The backlash, which should be directed at self-interested
politicians, instead focuses on the Voting Rights Act, the Justice Department,
and race-conscious policymaking. Whether intended this way or not, Shaw might
thus be seen as a blow against the cynical manipulation of the VRA.
The second point is related. If the design of District 12 reflects political
purposes, any potential equal protection violation would therefore have to
reside in the earlier decision - that of the Justice Department to require a
second majority-minority district. In legal terms, however, finding such a
violation at the first stage of this process would be difficult, at least if the
routine application of the VRA remains constitutional, as the opinion suggests
it does. For the use of race in Decision A is routine, rather than extreme.
Indeed, the decision appears to be a typical application of the VRA; the
Attorney General found a violation in the failure to create a second
majority-minority district where - applying the Justice Department's traditional
criteria, which take geographic compactness into account - such a district could
be created. Yet nothing in that decision violates the Fourteenth Amendment under
the reasoning of Shaw; it is not a decision to ignore all traditionally relevant
districting criteria in the name of race.
To see this more clearly, suppose North Carolina had created a relatively
compact second district. By definition, this would not trigger the special
"district appearance" claim recognized in Shaw. This means that, on Shaw's own
reasoning, Decision A, which does employ race, does not violate the
Constitution. But if Decision B reflects partisan and incumbency purposes, it
too does not involve the use of race at all. Thus, Decision B cannot violate the
Constitution either.
What does all this establish? That if constitutional principles must assess
state action on the basis of "the actual facts," and if we accept the "strong"
version of those facts - as the Court appears to do - Shaw is difficult to
explain or rationalize coherently. From that, we [*519] might conclude that
Shaw is simply wrong. Alternatively, we might conclude that the seemingly
noncontroversial first premise is wrong: perhaps the mistake is in assuming that
constitutional principles must be applied to "the actual facts." Yet what could
the alternative possibly be? The best answer would have to be that
constitutional principles can properly apply to the social perceptions the facts
generate, rather than be confined to the actual facts themselves.
This extraordinary conception of constitutional adjudication would have to
underlie Shaw if the Court is assuming the "strong" version of the facts. Shaw
would then rest on social perceptions in a much deeper way than our initial
description suggests. That is, when the Court says, "we believe that
reapportionment is one area in which appearances do matter," n121 that belief
would have to be operating at two levels. For it is the appearance - not the
fact - that a district's appearance reflects value reductionism in the name of
race that lies behind Shaw.
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n121. Shaw, 113 S. Ct. at 2827.
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92 Mich. L. Rev. 483, *519 LEXSEE
If District 12 were indeed drawn for incumbency and partisan reasons, Shaw
would ultimately involve a conflict between social perceptions and the actual
facts of politically self-interested districting. Once the Court assumed this
kind of conflict, which it appears to have done, the Court had three options.
First, it might have rejected the equal protection claim in an opinion that
exposed the politically self-interested manipulation of race. For those who
believe the Court can play a significant educative role, this might have been
the preferred course: let the citizens of North Carolina know that their
politicians, not the VRA, are to blame.
Second, the Court might have focused only on the actual facts, rather than
attempt to assess the social perceptions they created. If no constitutional
principle prohibits bizarrely shaped districts when designed for the purpose of
protecting incumbents, then no constitutional violation would exist. n122 Many
will believe this to have been the better course. After all, legal principles
that turn on social perceptions, rather than "the actual facts," will not make
judicial decisionmaking any more consistent or predictable.
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n122. On remand or in future applications of Shaw, a crucial question is
likely to be whether governments can legitimately assert that partisan advantage
or protection of incumbents provides a compelling end under strict scrutiny to
justify extremely contorted election districts. For discussion, see infra text
accompany notes 254-69.
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The third option would be to apply constitutional principles in a way that
gives social perceptions priority over the actual facts. To the extent the
Court's opinion assumes the "strong" version of the facts, [*520] this
rather remarkable option is the one the Court chose in remanding the case for
strict scrutiny assessment. Before dismissing this choice as confused or
unworkable, we ought to consider whether social perceptions should be excluded
from the proper concerns of constitutional law. For many purposes social
perceptions are no less "real" than actual facts; these perceptions play a
critical role in defining and shaping the prevailing political culture. Perhaps
constitutional law is properly concerned with the character of this public
culture. Indeed a surprising number of constitutional doctrines or Supreme Court
decisions are difficult to rationalize in functional terms; for example, some
decisions preclude legislatures from using certain means to achieve a particular
end but permit other means to achieve exactly the same end. n123 The best
justification for these doctrines and decisions is that they are geared toward
cultivating certain collective understandings in the political culture, rather
than toward prohibiting certain end states from being achieved. That is, these
doctrines require public officials to understand the relationship between
certain values in a particular way. Shaw rests precisely on this kind of concern
for appropriate public understandings regarding the relationship of race to
redistricting. Thus, on the strong view of the facts, Shaw must stand for the
view that extremely contorted minority districts convey the social impression
that race has dominated public decisionmaking - that the appearance that race
has played such a role violates the Fourteenth Amendment. More concisely,
appearance is part of the reality the Constitution addresses.
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92 Mich. L. Rev. 483, *520 LEXSEE
-
n123. This article is not the place to provide a lengthy catalogue of such
doctrines or decisions, but, as one example, consider the recent decision in New
York v. United States, 112 S. Ct. 2408 (1992). There Congress had ratified a
state-led effort to develop a comprehensive mechanism for fairly distributing
the burdens of low-level nuclear waste disposal. The Court held that Congress
could enforce this scheme constitutionally through monetary and other
incentives, but it could not do so by requiring states to assume ownership of
nuclear waste if they failed in their other obligations. 112 S. Ct. at 2412. In
functional terms, the decision is easy to criticize, for Congress can enforce
the statute through other, perhaps equally effective means - means just as
"coercive" in effect as mandatory ownership. Yet the Court might be understood
as concluding that Congress expresses a distinct - and constitutionally
impermissible - attitude toward the states when it directly mandates their
action. Even if vulnerable on functional or doctrinal grounds, the decision
might be thought to assert the principle that Congress cannot understand its
relationship to states in this way. Interestingly, Justice O'Connor is the
author of New York. Thus, we might see a general theme emerging in Justice
O'Connor's conception of constitutional law and the Court's role: a general
attentiveness to the expressive dimensions of public action. For further
examples of decisions that might be difficult to rationalize on functional
grounds, but are best understood in more expressive terms, see the provocative
account in Philip Bobbitt, Constitutional Fate 196-223 (1982).
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b. The weak view of the facts. If this interpretation of Shaw is incorrect,
it must be because a different set of facts lies behind the North Carolina
districting scheme. The alternative, "weaker" view of the facts would be that
North Carolina could not have created a signif [*521] icantly more compact
second minority district than CD12. On this view, the Justice Department erred
in concluding that the state could have created such a district. In light of the
difficulty of reaching firm conclusions from the record, n124 this possibility
cannot be dismissed. If the Justice Department were mistaken, then the "bizarre"
shape of CD12 would reflect good-faith efforts of the North Carolina General
Assembly to comply, not self-serving political ends. Perhaps when the General
Assembly attempted to design a second minority-controlled district, the only
possibilities turned out to be districts as odd in shape as the one the Assembly
eventually chose. n125
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n124. See infra note 126.
n125. If this were so, the state perhaps could have submitted its second
districting plan for preclearance and tried to demonstrate to the Justice
Department that a reasonably compact second minority district could not have
been created. Of course, the state might have faced considerable costs,
financial and political, from further delaying implementation of the post-1990
congressional redistricting.
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92 Mich. L. Rev. 483, *521 LEXSEE
If this account is accurate, the reasons behind the design of CD12 would be
more purely race-conscious ones. No manipulation of the VRA or racial symbolism
for narrow partisan advantage or protection of incumbents would have been
involved. Instead, the state was primarily motivated by the goal of creating a
second minority-controlled district; this motivation, not others, would account
for the peculiar shape of CD12. To some, this version of the facts might make
the design of the district less troubling. On this view, it is far worse for
politicians to manipulate social perceptions and pursue political agendas under
the guise of complying with federal law and ensuring fair minority
representation. When the only means of ensuring fair and effective minority
representation is through oddly shaped districts, the direct and exclusive
pursuit of this goal should, on this view, be accepted. To others, the weaker
interpretation of the facts would make the case even more troubling, for race
would then be the dominant purpose behind CD12. Now the actual facts (not the
social perceptions) would be that concerns for race had dominated all other
redistricting values.
The judicial opinions in Shaw and the record evidence we have reviewed do
not permit us to make a convincing choice between the "strong" and "weak" views
of the facts. n126 Certainly the Court comes [*522] closest to having
assumed the strong version. n127 Moreover, the very terms in which the Court
chose to confront the formal legal question to be decided assumes this strong
version of the facts. Thus, the appellants initially filed a broad
jurisdictional statement that directly challenged the state's power to draw
majority-black districts. n128 But in noting probable jurisdiction of the case,
the Court directed the parties to brief a different and narrower question:
Whether a state legislature's intent to comply with the Voting Rights Act and
the Attorney General's interpretation thereof precludes a finding that the
legislature's congressional redistricting plan was adopted with invidious
discriminatory intent where the legislature did not accede to the plan suggested
by the Attorney General but instead developed its [*523] own. n129
This way of framing the issue assumes the state could have complied, but
deliberately chose its own alternative.
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n126. Trying to resolve which version of the facts - the "strong" or the
"weak" version - is more accurate brings to the surface the complexities of
current VRA theory and practice. First, when the North Carolina General Assembly
came up with its first redistricting plan, which included only one
black-dominated district, the General Assembly expressly concluded that "it is
apparent that it is only possible to create one majority black district that is
reasonably compact, and that is what Chapter 601 does." Lacy Thornburg, Attorney
General of North Carolina, Other Material Concerning the Purpose of the Plan, in
Section 5 Submission for North Carolina Congressional Redistricting, Chapter 601
(Aug. 28, 1991) (unpublished document submitted to the Civil Rights Division,
U.S. Department of Justice, copy on file with authors). In reaching this
conclusion, the General Assembly, which Democrats controlled, rejected at least
two Republican-sponsored alternatives that would have arguably created two
minority-dominated districts (as well as, presumably, having Republican-favored
partisan effects). The stated reasons for these rejections were that, in one
plan, the second district was "so sprawling that it was most often described as
"ludicrous' or "absurd,' " id. at 1, and that, in the other alternative, the
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92 Mich. L. Rev. 483, *523 LEXSEE
second district
sprawled all over eastern North Carolina and looked like a river with many
tributaries running from Virginia in the north to Wilmington in the south. It
would be exceedingly hard to campaign effectively in this area, or to represent
it well, since in many areas it is only one precinct wide.
Id. at 2. Thus, Republicans in North Carolina were no less willing to design
highly contorted districts than the General Assembly was when the Assembly
created District 12. Moreover, if these reasons are taken at face value, they
suggest that the General Assembly sought to avoid extremely distorted districts
and ended up with one only after the Department of Justice's denial of
preclearance; these comments also suggest that designing a reasonably compact
second minority district was considerably more difficult than the "strong"
version of the facts assumes. Of course, whether the reasons the General
Assembly offered should be taken at face value is a question that would require
more detailed factual inquiry.
Second, it is difficult to judge (from the record material we have seen) the
basis on which the Justice Department concluded that a second, reasonably
compact minority district could have been created in southeastern North
Carolina. The only map proposing such a district we have been able to discover
in the record is that which the NAACP submitted to the Justice Department with a
memorandum dated Oct. 29, 1991. This memorandum stated "there are many ways that
the population in the Southeast area of North Carolina can be configured to
create another minority district. Our proposal is created to show that there is
the possibility of the district." Memorandum from Samuel L. Walters, Assistant
General Counsel, NAACP to George Harrison, Voting Rights Division, U.S.
Department of Justice 1 (Oct. 29, 1991) (on file with authors). Yet this
memorandum itself acknowledged that "the map shows the district is not the most
compact one ever created," id., and the proposed district would have had a
population (not voting-age population, as far as we can tell) that would have
been 51.2% Black and 8.4% American Indian. Id. at 2. Thus, even the district the
NAACP proposed apparently depended on aggregating minority populations to create
a second minority-controlled district. Whether the VRA permits or requires such
aggregation of minority groups, and under what circumstances, remains a major
unresolved question. The Justice Department did not specify the particular
location of the second district it had in mind and generally refrains from
proposing detailed district designs that local governments must follow. While
the Court understandably seems to have accepted the Justice Department's
assertion that a reasonably compact second district could have been created -
the "strong" version of the facts - the record material we have been able to
review does not convincingly establish this conclusion.
n127. See supra text accompanying note 118.
n128. Shaw v. Barr, 808 F. Supp. 461 (E.D.N.C. 1992), appeal docketed, No.
92-357 (U.S. Aug. 25, 1992).
n129. 61 U.S.L.W. 3418 (Dec. 7, 1992).
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The factual ambiguity behind Shaw v. Reno suggests two quite different
interpretations of the decision's reach. Because the Court seemingly decided
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92 Mich. L. Rev. 483, *523 LEXSEE
the case after assuming the strong version of the facts, Shaw might be read as
addressing only similar factual contexts. That is, Shaw might stand for the more
narrow proposition that a state must justify "highly irregular" minority
districts under strict scrutiny when - and only when - the state could have
created a reasonably compact minority district instead. If this reading is
right, Shaw would turn out to be a case of minimal significance addressing only
exceptional circumstances; it would have no impact on actual minority
representation. States would have to choose more compact districts over extreme
ones, but the number of minority districts in a state or nationwide would not be
affected. This interpretation of the decision is consistent with the actual
question the Court purported to decide and assumes, as the Court seemingly did,
the strong view of the facts.
Alternatively, Shaw might stand for the broader proposition that, even when
a state has no other way of creating a minority district, it cannot resort to
"highly irregular" shapes to do so without other compelling justifications. This
reading, of course, would have far greater effect on minority districts
throughout the country; precisely how great depends on the meaning courts give
to "highly irregular," a question on which we offer guidance in Parts III and
IV. Conceivably this question might be addressed on remand, for the state might
seek to defend its district on the ground, in part, that no more significantly
compact minority district could have been created.
The facts the Court apparently assumed and the precise legal question
presented provide support for reading Shaw narrowly. But, as a predictive
matter, we think it more likely the broader reading will prevail. Particular
factual contexts often influence the atmosphere in which the Court approaches
major legal issues, but those precise facts are sometimes left behind as courts
seize upon the broad legal principles the Court has seemingly laid down. In City
of Richmond v. J.A. Croson Co., n130 for example, the atmosphere surrounding the
Court's review of state affirmative action set-aside programs was certainly
influenced by the fact, which the Court stressed, n131 that black officials
controlled Richmond's city council. Yet the racial composition of the [*524]
enacting body has become irrelevant as lower courts have taken Croson to
establish broad constitutional principles for local set-aside programs. n132
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n130. 488 U.S. 469 (1989).
n131. 488 U.S. at 495-96.
n132. See., e.g., Contractors Assn. v. City of Philadelphia, Nos. 92-1880,
92-1887, 1993 U.S. App. LEXIS 25908, at *26-28 (3d Cir. Oct. 7, 1993).
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In the redistricting context, it seems unlikely that courts will read Shaw
to distinguish between "bizarre" minority districts that are the only way to
enhance minority representation and "bizarre" districts created where
reapportionment bodies could have designed more compact ones. Shaw emphasizes
its own specific facts, but the decision is simultaneously written in broad
rhetorical and legal terms. To the extent the decision is primarily focused on
the social perceptions about politics and race that the Court views irregular
race-conscious districts as generating, it seems yet more implausible that
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92 Mich. L. Rev. 483, *524 LEXSEE
courts will distinguish necessarily irregular districts from more superfluous
ones. Thus, we think it most likely courts will emphasize the broad themes of
Shaw and apply it as a general constraint on "highly irregular" race-conscious
districts.
5. Does Shaw Apply to White Districts?
In order to test this analysis, consider whether Shaw applies to districts
whose general or voting-age population is overwhelmingly white. Formalistically,
and doctrinally, this might be viewed as an easy question: equal protection
cannot apply differently to white-dominated and black-dominated districts.
Indeed, a defining trait of the current Court is its emerging commitment to the
principle that the Equal Protection Clause cannot apply differently depending on
the specific racial group that legislation benefits, burdens, or singles out.
This vision informs the strict scrutiny standard adopted in City of Richmond v.
J.A. Croson Co. n133
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n133. 488 U.S. 469 (1989).
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Yet, in the redistricting context, this kind of formal equality seems
particularly odd as well as inconsistent with any purposive, rather than formal,
interpretation of Shaw. To begin with, Shaw does not recognize a general
constitutional barrier to "highly irregular" districts. n134 Strict scrutiny is
not required for districting that is "bizarre on its face," but only for
districting that is "so bizarre on its face that it is "unexplainable on grounds
other than race.' " n135
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n134. See supra text accompanying notes 51-57.
n135. Shaw v. Reno, 113 S. Ct. 2816, 2825 (1993) (quoting Village of
Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977)).
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If we ask how best to give meaning to these principles when ap [*525]
plied to white-controlled districts, the social and political contexts in which
such districts are likely to arise suggest that Shaw might rarely, if at all,
apply. Highly irregular, white-controlled districts might be created in three
general contexts. First, they might be located in a state, like Iowa, that is
overwhelmingly white. Conceivably, such a district might involve contorted
boundaries for a number of reasons, including partisan advantage, incumbency
protection, or enhancement of one local economic interest at the expense of
others. Yet, by definition, the strange appearance of such a district could not
be understood in racial terms, let alone only in racial terms. Thus, on its own
terms, Shaw would not apply.
Next, consider a similar district in a state with a significant black
population, but where the oddly shaped white district is located in a region
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92 Mich. L. Rev. 483, *525 LEXSEE
of the state far removed from where most black residents live. Congressional
District 4, in Tennessee, appears to be such a district; it cuts a swath through
the middle of the state and, as our quantitative analysis will show later, it is
one of the most diffused districts in the country. n136 Tennessee's voting-age
population is 14.6% black, but largely concentrated in the southwestern part of
the state, around Memphis. Thus, no plausible basis appears to exist for
concluding that race explains this "highly irregular" district. Any district
that might reasonably take its place, no matter how compact, would likely
include a similar percentage of white voters. Under this scenario, the district
might be odd, but not because it is "segregating" races. Again, on its own terms
Shaw presumably would not apply; Tennessee would not have to defend this
district under strict scrutiny.
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n136. See infra Table 3.
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The third, more complicated, scenario would involve a highly irregular
district in a state with a significant black population or in a region in which
such a population lives. If the state designs the district with a racially
discriminatory intent or if the district results in minority-vote dilution, it
would be unlawful without regard to Shaw. But, if it is not unlawful on those
grounds, could such a district plausibly generate the perception that it has
been designed for racial reasons? In the absence of illegal minority-vote
dilution, this scenario is factually unlikely because numerous nonracial reasons
might account for the district's irregular shape. However base or noble the
motivations of partisan manipulation, incumbency protection, and the like might
be, they are not racial motivations. Nor are whites likely to benefit, as
whites, from contorted district shapes that do not have the effect of diluting
minority votes. In other words, when people see "bi [*526] zarrely shaped,"
white-dominated districts - and no illegal vote dilution is taking place - are
they likely to perceive those districts as extremist creations in the name of
race, at least as Shaw understands that concept? n137
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n137. Conceivably, there might be situations in which boundaries were
intentionally manipulated to deny blacks potential influence that would still
not amount to illegal vote dilution. If there are ever such circumstances that
do not violate the VRA itself, Shaw's logic would sensibly extend to these
contexts.
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The important general point here is that many reasons might explain oddly
shaped white-dominated districts. Yet similar black-dominated districts are more
likely to reflect a single, recurring aim: to enhance effective minority
representation. This asymmetry is a function of the social realities of race in
this country and of the existence of the VRA. Whites do not need to be
concentrated into districts to assure their effective political participation;
in contrast, as the VRA recognizes, minorities might need effective control over
some "safe" districts to avoid their submergence in a hostile majority.
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92 Mich. L. Rev. 483, *526 LEXSEE
In terms of applying Shaw, this means that, in principle or in actual fact,
Shaw is unlikely to affect white districts. Only in the third scenario is Shaw
potentially relevant, and, even there, it seems unlikely that courts will find
race to be the basis for contorted majority-dominated districts (in the absence
of actual vote dilution). This result might seem an obvious corollary of the
"similarly situated" requirement of equal protection: given social realities,
black and white districts rarely, if ever, arise in similar circumstances. But
courts, including the Supreme Court, might find it difficult to embrace this
conclusion directly. To announce that Shaw constrains only the choices of
policymakers designing minority-controlled districts is, at the least, awkward,
particularly for a Court committed to formal equality. Yet the logic of Shaw
itself would seem to dictate such a conclusion.
***
We are now in a position to summarize the purposes and principles that
underlie Shaw. Government cannot redistrict in a way that conveys the social
impression that race consciousness has overridden all other, traditionally
relevant redistricting values. In the Court's view, certain districts whose
appearance is exceptionally "bizarre" and "irregular" suggest that impression.
Plaintiffs need not establish that they suffer material harm, in the sense of
vote dilution, from such a district. Shaw is fundamentally concerned with
expressive harms: the [*527] social messages government conveys when race
concerns appear to submerge all other legitimate redistricting values.
Identifying these principles is one task; giving meaningful content to them
is another. The "special harms" which concern the Shaw Court arise only when
some threshold of distorted district "appearance" has been crossed. But how is
that threshold to be recognized? If Shaw is fundamentally concerned with social
perceptions, can legal criteria be developed to discipline the inquiry - of
courts and reapportionment bodies - into these perceptions? Alternatively, are
these expressive harms so inarticulable and unquantifiable that courts must be
left to apply their intuitive judgments in an ad hoc, case-by-case fashion?
In Part II, we describe previous efforts of courts to give content to
similar requirements governing election-district shape. The unpromising history
of these efforts suggests the need for an alternative approach. In Part III, we
develop quantitative standards for judging district appearance and thereby
giving content to Shaw's principles.
II. Compactness Under State Law and the
Voting Rights Act
Shaw raises the issue of district compactness in an unusual - indeed,
singular - legal context: the constraints the U.S. Constitution imposes on the
appearance of legislative districts. As noted earlier, Shaw is the first case to
suggest such a constraint as a matter of federal constitutional law. n138 Issues
of district compactness n139 have arisen in [*528] two other legal contexts,
however, and judicial experience from these other settings provides a starting
point for considering the ways courts might implement Shaw.
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92 Mich. L. Rev. 483, *528 LEXSEE
n138. See supra text accompanying note 6.
n139. Nothing in the Constitution itself requires the states to create
congressional districts. See U.S. Const. art. I, 2. Indeed, in the first
elections after ratification, the majority of new states held at-large
congressional elections. Only Massachusetts, New York, Maryland, Virginia, and
South Carolina were organized into representative districts. There is evidence
that at least some of the Framers expected the states to create districts and
intended the Time, Place, and Manner Clause of Article I, Section 4 to act as a
brake against factional districting by state legislatures. Andrew Hacker,
Congressional Districting: The Issue of Equal Representation 8-10 (1963). For
example, James Madison approvingly asserted in The Federalist No. 56, at 379-80
(James Madison) (Jacob E. Cooke ed., 1961): "Divide the largest state into ten
or twelve districts, and it will be found that there will be no peculiar local
interest ... which will not be within the knowledge of the representative of the
district." Similarly, Alexander Hamilton stated at the New York ratifying
convention: "The natural and proper mode of holding elections will be to divide
the state into districts in proportion to the number to be elected." Alexander
Hamilton, First Speech of June 21 in the New York Ratifying Convention, in
Selected Writings and Speeches of Alexander Hamilton (Morton J. Frisch ed.,
1985), quoted in Congressional Quarterly Inc., Jigsaw Politics: Shaping the
House After the 1990 Census 6 (1990) (alteration in original).
As of 1840, nine of the 31 states continued to elect representatives at
large. In response to the frequent occurrence of a majority party's sweeping an
entire state delegation in at-large states, Congress invoked the Time, Place,
and Manner Clause to pass the Reapportionment Act of 1842, ch. 47, 5 Stat. 491.
That Act required, for the first time, that representatives "shall be elected by
districts composed of contiguous territory equal in number to the number of
Representatives" for each state. Reapportionment Act of 1842, ch. 47, 5 Stat.
491. Despite the Act, New Hampshire, Georgia, Mississippi, and Missouri
conducted their 1842 elections under at-large systems; over protests, Congress
seated all the members of these states. Congressional Quarterly Inc., supra, at
18.
In 1901, Congress added a compactness requirement to the Act,
Reapportionment Act of 1911, ch. 5, 3, 37 Stat. 13, 14; Reapportionment Act of
1901, ch. 93, 3, 31 Stat. 733, 734, but this requirement was soon dropped.
Reapportionment Act of 1929, ch. 28, 2a, 46 Stat. 21, 26. See generally Steve
Bickerstaff, Reapportionment by State Legislatures: A Guide for the 1980s, 34
Sw. L.J. 607, 610-11 (1980) (describing Congress's failure to pass a
reapportionment act after the 1920 Census, thus delaying reapportionment until
passage of the federal Reapportionment Act of 1929). The compactness requirement
has never been revived. See Wood v. Broom, 287 U.S. 1 (1932) (interpreting the
federal Reapportionment Act of 1929 to repeal compactness requirement); cf.
Franklin v. Massachusetts, 112 S. Ct. 2767, 2771 (1992) (discussing the passage
of the Reapportionment Act of 1929). Today, only the seven states that are
entitled to a single representative - Alaska, Delaware, Montana, North Dakota,
South Dakota, Vermont, and Wyoming - hold at-large congressional elections. For
a good overview of congressional reapportionment acts, see Emanuel Celler,
Congressional Apportionment - Past, Present, and Future, 17 Law & Contemp.
Probs. 268 (1952).
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92 Mich. L. Rev. 483, *528 LEXSEE
First, twenty-five states, through state constitutions or statutes, require
compact legislative districts. n140 In practice, these requirements have been
largely ineffective. n141 Second, the VRA itself, as interpreted in Thornburg v.
Gingles, n142 requires proof that a reasonably compact minority district could
be created in order to establish substantive liability. n143 Although only a few
decisions have addressed this aspect of Gingles, the VRA cases provide useful
additional information concerning judicial implementation of compactness
standards. This experience also suggests that, absent quantitative guidelines,
judicial efforts to give content to compactness requirements are likely to be
inconsistent, ad hoc, and unpredictable.
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n140. Grofman, Criteria for Districting, supra note 7, at 85. In Hawaii,
Iowa, Missouri, Montana, Virginia, West Virginia, and Wyoming, state compactness
requirements apply to congressional redistricting. See Larry M. Eig & Michael V.
Seitzinger, Congressional Research Service, State Constitutional and Statutory
Provisions Concerning Congressional and State Legislative Redistricting, CRS
Rep. No. 81-143A (June 7, 1981) (citing statutes and constitutions from Hawaii,
Iowa, Missouri, Montana, Virginia, West Virginia, and Wyoming); see, e.g.,
Shayer v. Kirkpatrick, 541 F. Supp. 922, 931-32 (W.D. Mo.), affd., 456 U.S. 966
(1982).
n141. See infra text accompanying notes 149-55.
n142. 478 U.S. 30 (1986).
n143. See supra note 13 and accompanying text.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Neither of these experiences suggests that easy solutions will be
forthcoming to Justice White's concern that Shaw is unworkable. n144 Recent
developments in both technology and the social sciences, however, offer a
principled and judicially administrable way out of this new redistricting
"thicket." n145 That path involves embracing quanti [*529] tative measures of
"district appearance" that social scientists and statisticians have developed in
recent years.
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n144. Shaw v. Reno, 113 S. Ct. 2816, 2842 (1993) (White, J., dissenting).
n145. Justice Frankfurter coined the phrase "political thicket" in Colegrove
v. Green, 328 U.S. 549, 556 (1946), and it has continued to accompany virtually
all judicial entries into new issues surrounding redistricting. See generally
Peter H. Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial
Regulation of Politics, 87 Colum. L. Rev. 1325 (1987).
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A. State Compactness Requirements
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92 Mich. L. Rev. 483, *529 LEXSEE
Nearly all of the twenty-five states that require compact districts express
this requirement in qualitative terms. Many provisions simply require that
districts be "compact," often in a ritualistic trilogy like the following from
the Illinois Constitution: districts must be "compact, contiguous and
substantially equal in population." n146 In other states, this language is
modified by provisions requiring that districts be as "compact as possible," as
"compact as practicable," or "reasonably compact." n147 Just two states, Iowa
and Colorado, express compactness requirements in specific quantitative
formulas. n148
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n146. Ill. Const. art. IV, 3(a).
n147. See, e.g., Mich. Const. art. IV, 2 (requiring state senatorial
districts to be drawn "as rectangular in shape as possible"); Mo. Const. art.
III, 5 (mandating that state senate districts be "of contiguous territory, as
compact and nearly equal in population as may be"); N.Y. Const. art. III, 5
(requiring assembly districts to be drawn "in as compact form as practicable").
For a full survey of state compactness requirements, see Grofman, Criteria for
Districting, supra note 7, at 177 tbl. 3.
n148. One of the two compactness standards that the Iowa legislature adopted
in 1980 is expressed as "the ratio of the dispersion of population about the
population center of the district to the dispersion of population about the
geographic center of the district." Iowa Code Ann. 42.4(1)(c) (West 1991).
Colorado's Constitution provides a compactness measure based on the sum of the
perimeters of district boundaries. Colo. Const. art. V, 47.
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With respect to both reapportionment practice and judicial decisionmaking,
these requirements have been ineffective. The requirements seem to be
infrequently litigated; when they are, state courts have been reluctant to
enforce them, expressing extreme deference to political bodies. To be sure, a
few courts have overturned redistricting plans on state law compactness grounds.
n149 Not surprisingly, perhaps, [*530] the state courts in the two states,
Iowa and Colorado, that embody compactness standards quantitatively are among
the few courts to have found compactness violations. n150 Generally, however,
state courts purport to enforce these requirements while signaling that they
will seriously scrutinize only dramatic departures from the requirements. Often,
courts will not invalidate individually noncompact districts unless they find
the entire districting plan to be insufficiently compact. n151 In addition, when
state courts do confront challenges to district compactness, they typically rely
on their own intuitive visual assessments - even when the parties have presented
expert testimony analyzing districts through quantitative measures. n152
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n149. The leading recent state case is probably Schrage v. State Bd. of
Elections, 430 N.E.2d 483 (Ill. 1981). The case is particularly significant
because the court found a compactness violation with respect to the design of a
single state district. More commonly, state courts that strike down
redistricting plans do so on the ground that the plan as a whole, rather than an
isolated district, violates state law requirements. Schrage was the first case
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92 Mich. L. Rev. 483, *530 LEXSEE
in Illinois history to strike down a districting plan for violating the state
constitution's compactness requirement. A year later, the court in Martin v.
Soucie, 441 N.E.2d 131 (Ill. App. Ct. 1982), relied upon Schrage to defeat an
apportionment plan for county board elections.
For other state cases finding violations of state law compactness
requirements, see Preisler v. Doherty, 284 S.W.2d 427 (Mo. 1955) (invalidating
state senatorial redistricting of the City of St. Louis); State ex rel. Barrett
v. Hitchcock, 146 S.W. 40 (Mo. 1912) (invalidating entire Missouri state
senatorial apportionment on constitutional compactness and population equality
failings); In re Sherill, 81 N.E. 124 (N.Y. 1907) (invalidating entire
51-district New York state senatorial apportionment on grounds that two
districts failed to meet constitutional compactness and population equality
requirements); In re Livingston, 160 N.Y.S. 462 (Sup. Ct. 1916) (voiding
apportionment of assembly districts within a senate district).
n150. See Acker v. Love, 496 P.2d 75 (Colo. 1972); In re Legislative
Districting of Gen. Assembly, 193 N.W.2d 784, 791 (Iowa 1972).
n151. See, e.g., Preisler v. Kirkpatrick, 528 S.W.2d 422, 426-27 (Mo. 1975)
(finding all but two districts to be within compactness requirements and holding
that "considering the overall, state-wide plan developed ... the districts
established substantially comply with the compactness requirement" of the
Missouri Constitution); Opinion to the Governor, 221 A.2d 799 (R.I. 1966)
(finding districting plan valid absent "a complete departure from the
requirement for compactness") (advisory opinion). See generally Grofman,
Criteria for Districting, supra note 7, at 86.
n152. A typical example is the recent decision of the Virginia Supreme Court
in Jamerson v. Womack, 423 S.E.2d 180 (Va. 1992). There the plaintiffs
challenged, on compactness grounds, two state senate districts, at least one of
which was designed to be a majority-black district. The court acknowledged that
one of the districts was longer than any other in the state and that the enacted
plan split more counties than other plans the legislature had considered. At
trial, each side offered expert testimony on the compactness of the districts
and plan. On appeal, the Virginia Supreme Court did not evaluate this testimony
or engage in any analysis of the quantitative measures presented. Instead, the
court found it sufficient that the expert testimony was in conflict and that the
trier of fact had accepted one side's testimony. 423 S.E.2d at 186.
Similarly, in Schrage v. State Bd. of Elections, 430 N.E.2d 483 (Ill. 1981),
the Illinois Supreme Court chose to "rely on a visual examination of the
questioned district as other courts have done," finding that "a more precise
measurement is unnecessary." 430 N.E.2d at 487; cf. In re Legislative
Districting of the State, 475 A.2d 428, 437 (Md. 1984) ("With the possible
exception of Colorado ... no jurisdiction has defined or applied the compactness
requirement in geometric terms. On the contrary, most jurisdictions have
concluded that the constitutional compactness requirement, in a state
legislative redistricting context, is a relative rather than an absolute
standard.") (citation omitted).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This article provides quantitative information that bolsters the sense one
gets from reading the caselaw that qualitative compactness standards have
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92 Mich. L. Rev. 483, *530 LEXSEE
little practical effect. Using social-scientific methods that we describe and
justify later in this article, we have compared the compactness of U.S. House of
Representatives districts in the 1980s and 1990s in those states that legally
require compact congressional districts with those that do not. Table 1 presents
these results. [*531]
[SEE TABLE 1 IN ORIGINAL]
For present purposes, it is sufficient to know that the quantitative measures of
district compactness in Table 1 vary from 0.0 to 1.0, with more compact
districts scoring higher on this scale. As Table 1 reveals, there appears to be
no meaningful difference, either in the 1980s or the 1990s, between the
compactness of congressional districts in states that legally require it and
those that do not. n154 This result suggests that redistricting bodies do not
take compactness into account any more when it is legally required, and that
courts have not been willing to enforce such requirements in ways that affect
outcomes.
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n153. Information provided by Election Data Services, Inc.
n154. Only the perimeter measure in the 1980s shows enough of a difference to
be possibly meaningful. We discuss this measure infra at text accompanying notes
202-04.
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The number of states that require compactness of congressional districts is
small; hence, conclusions based on these data must be tentative. n155
Nevertheless, the best inference from the available information is that, as
presently enforced, qualitative state compactness requirements do little to
stimulate greater regularity in congressional district shapes. [*532]
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n155. With so few states requiring compactness, individual cases could
greatly influence the results. Hawaii's districts are relatively noncompact
because they are artifacts of the unusual geography (island composition);
balancing this extreme, perhaps, are Iowa's relatively compact districts based,
in part, on its rather square shape.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
B. Compactness Requirements Under the Voting Rights Act
Legal requirements that districts be compact also arise under the VRA. n156
The Court has yet to give this requirement much specific content. Last Term,
however, in another significant voting-rights case, Growe v. Emison, n157 the
Court intimated that state and local jurisdictions, as well as lower courts,
were paying insufficient attention to compactness. Growe might suggest that the
Court is likely to return soon to the requirement of compactness under the VRA.
n158
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92 Mich. L. Rev. 483, *532 LEXSEE
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n156. See Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).
n157. 113 S. Ct. 1075 (1993).
n158. In Growe, a federal district court, after having appointed a special
master, had crafted a redistricting plan for Minnesota's state senate. In
overturning that decision, the Supreme Court described the one state senate
district, which the district court had believed the VRA required, as an "oddly
shaped creation." The Court also characterized as "dubious" the district court's
assumption that this district was "geographically compact" under Gingles. 113 S.
Ct. at 1085. The Court described this district, Senate District 59, as
"stretching from south Minneapolis, around the downtown area, and then into the
northern part of the city in order to link minority populations." 113 S. Ct. at
1083. In total population figures, the district was 43% black and 60% minority.
113 S. Ct. at 1083. Because the Court overturned the district court's judgment
on other grounds, these comments are dicta, but they might nonetheless be
suggestive.
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Even before the Supreme Court's focus on compactness last Term, questions of
appropriate district shape were becoming increasingly important in the lower
courts. n159 Under the VRA, compactness arises both as an element of plaintiffs'
claims and as a defense put forward by jurisdictions. Compactness concerns can
also arise at both the liability and remedial stages of litigation. To date,
only a handful of federal courts have addressed these issues; like the state
courts, those that have done so have relied on intuitive, eyeball assessments
rather than quantitative standards. The decisions display considerable
inconsistency. n160
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n159. See generally Pamela S. Karlan, Maps and Misreadings: The Role of
Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv. C.R.-C.L. L.
Rev. 173, 199 (1989) ("Geographic concerns played only a minor role in the
legislative history of amended Section 2. In the past two years, however,
geographic compactness has moved to the forefront of vote dilution litigation
....") (footnote omitted).
n160. In these cases, the courts sometimes discuss compactness in isolation
and sometimes in terms of the appropriate trade-offs between it and other
values. When courts treat compactness as the sole variable, they frame the
judicial inquiry as whether districts are "sufficiently compact." When courts
consider the appropriate trade-offs between shape and other relevant
redistricting values - for example, avoidance of vote dilution, compactness,
preservation of communities of interest - the question is what degree of
compactness is consistent with other legitimate redistricting policies.
Although the way the question is framed initially may have some effect on
shifting burdens of evidentiary production, ultimately these two approaches
amount to the same inquiry. Whether a district is "sufficiently" compact, for
example, is largely a function of how one weighs the value of compactness
against competing districting values.
PAGE 55
92 Mich. L. Rev. 483, *532 LEXSEE
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At one pole, some courts have viewed the governmental interest in enhancing
minority representation as sufficient in and of itself to justify contorted
district shapes. The leading example is Dillard v. [*533] Baldwin County
Board of Education, n161 in which the court rejected the county's argument that
a proposed majority-minority school board district would be "too elongated and
curvaceous." n162 The court explained that compactness "does not mean that a
proposed district must meet, or attempt to achieve, some aesthetic absolute,
such as symmetry or attractiveness." n163 Thus, the court accepted plaintiffs'
proposed districting plan for the county board of education, even though it
included this narrow, elongated district. n164 Other courts have taken a
comparative approach. They hold minority-controlled districts that "look rather
strange" to be nonetheless sufficiently compact when they "are not materially
stranger in shape than at least some of the districts contained" in a
jurisdiction's current districting plan. n165
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n161. 686 F. Supp. 1459 (M.D. Ala. 1988).
n162. 686 F. Supp. at 1466.
n163. 686 F. Supp. at 1465. Not anticipating Shaw, the court went on to add
that "an aesthetic norm" would be "an unworkable concept, resulting in arbitrary
and capricious results, because it offers no guidance as to when it is met." 686
F. Supp. at 1465-66.
n164. The court also noted that the county's proposed plan contained a
similarly shaped district, and that the board's superintendent had testified
that the district posed no administrative or other problems. 686 F. Supp. at
1466.
n165. Jeffers v. Clinton, 730 F. Supp. 196, 207 (E.D. Ark. 1989); see also
Neal v. Coleburn, 689 F. Supp. 1426, 1437 (E.D. Va. 1988) (stating that
asymmetrical districts are acceptable when "in line with the configurations of
electoral districts that have been approved in other cases").
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At the other extreme, some courts decline to find substantive VRA liability
when the only possible minority-controlled districts are, in the court's view,
insufficiently compact. Thus, one federal court recently rejected a proposed
district as "an odd contortion" that "reaches down to get a pocket of white
voters in the south-east-central part of the county and then curves around to
the west and then back to the north-east corner of the county ...." n166
Rhetorically asking, "does a legislative body have to draw lines in a distorted
way?" the court answered "no." n167 Similarly, another federal court recently
rejected a VRA challenge to a county supervisory district in which the
plaintiffs' proposed plan joined black residents from three distinct
municipalities into a single district. The court concluded that "this exercise
results in extreme gerrymandering," with the district being "drawn in an unusual
or illogical manner." n168
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92 Mich. L. Rev. 483, *533 LEXSEE
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n166. Bryant v. Lawrence County, 814 F. Supp. 1346, 1350 (S.D. Miss. 1993).
The court also concluded that the plaintiffs drew the proposed districts
"without regard to natural geographic boundaries, or splitting of precincts."
814 F. Supp. at 1350.
n167. 814 F. Supp. at 1351.
n168. Clark v. Calhoun County, 813 F. Supp. 1189, 1198 (N.D. Miss. 1993).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Courts also merge the definition of compactness into other relevant
districting criteria, such as whether the district preserves a "commu [*534]
nity of interest" or enables "effective representation." Yet, even when courts
merge these inquiries, the decisions continue to conflict. For example, the
Dillard court said "a district would not be sufficiently compact if it were so
spread out that there was no sense of community" n169 and then went on to accept
a narrow district that stretched most of a county's length. In contrast, the
court in East Jefferson Coalition for Leadership and Development v. Jefferson
Parish n170 adopted a similar "recognizable community" definition of
compactness, n171 but, in applying the standard, it held that a
thirty-five-sided district that crossed the Mississippi River failed to meet the
standard. The failure to create this district, therefore, did not constitute a
VRA violation. n172
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n169. Dillard v. Baldwin County Bd. of Educ., 686 F. Supp. 1459, 1466 (M.D.
Ala. 1988) (noting that a district would have "no sense of community ... if its
members and its representatives could not effectively and efficiently stay in
touch with each other; or ... if its members and its representatives could not
easily tell who actually lived within the district").
n170. 691 F. Supp. 991 (E.D. La. 1988).
n171. "A proposed district is sufficiently compact if it retains a natural
sense of community. To retain that sense of community, a district should not be
so convoluted that its representative could not easily tell who actually lives
in the district." 691 F. Supp. at 1007.
This principle appears similar to one that Bernard Grofman has recently
advanced under the label of "cognizability":
I wish to argue that districts can be so far from cognizable that they violate
what we might think of as a due process component of equal protection by
damaging the potential for "fair and effective representation." By
"cognizability," I mean the ability to characterize the district boundaries in a
manner that can be readily communicated to ordinary citizens of the district in
commonsense terms based on geographical referents....
....
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92 Mich. L. Rev. 483, *534 LEXSEE
Egregious violations of the cognizability principle can be identified by
making use of standard criteria of districting, such as violation of natural
geographic boundaries, grossly unnecessary splittings of local subunit
boundaries (such as city and county lines), and sunderings of proximate and
contiguous natural communities of interests.
Grofman, Vince Lombardi, supra note 7, at 1262-63 (footnotes omitted). Grofman
acknowledges that he does not yet have a clear operational test for
noncognizability, which he recognizes is especially problematic because
cognizability is best thought of as a continuum. Id. at 1262.
n172. 691 F. Supp. at 1007. The court nonetheless did invalidate Jefferson
Parish's unusual council-election scheme, which was not used anywhere else in
Louisiana, on other grounds. 691 F. Supp. at 994 n.2, 1008.
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Different federal courts have also interpreted compactness requirements
inconsistently with respect to the same geographic features. A recurring issue
is whether minority areas in different regions can be joined through
corridorlike connections. One court rejected a districting plan that connected
two black populations by a "long, narrow corridor." The court labeled this
"unacceptable "gerrymandering' " that "arbitrarily cuts diagonally through the
center of the county." n173 But another court explicitly approved a "corridor"
between black populations, concluding that it was "not unreasonably irregular in
shape, [*535] given the population dispersal within the County." n174
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n173. Potter v. Washington County, 653 F. Supp. 121, 130 (N.D. Fla. 1986).
n174. Neal v. Coleburn, 689 F. Supp. 1426, 1437 (E.D. Va. 1988).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Whether any of these federal court decisions merely appear to be in tension
with each other, or directly conflict, cannot be determined without an intensely
local appraisal of each geographic context. At the least, however, these
decisions, and others like them, n175 reveal considerable uncertainty as to how
courts and other bodies interpret and weigh compactness against other relevant
redistricting values. This is not surprising: compactness is the conceptual
point at which the tension between the traditional American commitment to
territorial districting and the VRA concern for fair representation of group
interests must be resolved. n176
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n175. See, e.g., Magnolia Bar Assn. v. Lee, 793 F. Supp. 1386 (S.D. Miss.
1992) (finding no 2 violation in Mississippi judicial redistricting, partially
on grounds that majority-minority districts could not be drawn without splitting
counties), affd., 994 F.2d 1143 (5th Cir. 1993); Wesch v. Hunt, 785 F. Supp.
1491, 1499 (S.D. Ala.) (adopting a court-decreed plan that creates a
majority-African-American congressional district for Alabama without "extensive
gerrymandering"), affd. sub nom. Camp v. Wesch, 112 S. Ct. 1926 (1992), and
affd. sub nom. Figures v. Hunt, 113 S. Ct. 1233 (1993); Burton v. Sheheen, 793
PAGE 58
92 Mich. L. Rev. 483, *535 LEXSEE
F. Supp. 1329, 1356 (D.S.C. 1992) ("In light of 2's strong national mandate ...
a district is sufficiently geographically compact if it allows for effective
representation."); Gunn v. Chickasaw County, 705 F. Supp. 315, 322-23 (N.D.
Miss. 1989) (rejecting proposed remedial plan partially on grounds that it did
not give proper consideration to existing political subdivisions and cohesive
neighborhoods); Carstens v. Lamm, 543 F. Supp. 68 (D. Colo. 1982) (fashioning a
court-decreed congressional redistricting plan for Colorado); Rybicki v. State
Bd. of Elections, 574 F. Supp. 1082, 1097 (N.D. Ill. 1982) (refusing to
invalidate the Illinois General Assembly's districting plan as "noncompact"
partially on grounds that plaintiffs' proposed plan contained similarly
noncompact districts).
n176. This tension is also apparent in the district court cases. Some courts
tend to treat the VRA as creating an affirmative duty to draw majority-minority
districts when reasonably possible. See, e.g., DeGrandy v. Wetherell, 794 F.
Supp. 1076, 1085 (N.D. Fla. 1992) ("We conclude that "the law supports the
drawing of a minority district where, in light of minority concentrations and
community of interests, such a district can reasonably be drawn.' ") (quoting
Report of the Special Master at 14 (May 18, 1992)), cert. granted sub nom.
Johnson v. De Grandy, 113 S. Ct. 2437 (1993); Jeffers v. Clinton, 730 F. Supp.
196, 205 (E.D. Ark. 1989) ("If ... reasonably compact and contiguous
majority-black districts could have been drawn, and if racial cohesiveness in
voting is so great that ... black voters' preferences for black candidates are
frustrated ... the outlines of a Section 2 theory are made out."), affd., 498
U.S. 1019 (1991).
Several recent decisions, however, have emphatically denied any duty on the
part of the legislature to maximize minority political representation. See,
e.g., Teague v. Attala County, 807 F. Supp. 392, 404 (N.D. Miss. 1992) ("The
Voting Rights Act never was intended as a vehicle for creating "safe' black or
other minority seats."); Nash v. Blunt, 797 F. Supp. 1488, 1496 (W.D. Mo. 1992)
("We do not believe Congress intended the Act to require maximum
representation."), affd. sub nom. African Am. Voting Rights Legal Defense Fund,
Inc. v. Plunt, 113 S. Ct. 1809 (1993); Turner v. Arkansas, 784 F. Supp. 553, 573
(E.D. Ark. 1991) (Section 2 of the VRA "is not violated ... simply because a
legislature does not enact a districting plan that maximizes black political
power or influence."), affd., 112 S. Ct. 2296 (1992).
According to a former Assistant Attorney General, Civil Rights Division,
"there is one thing the Civil Rights Division does not do: It does not require,
because the law does not require, the maximization of minority representation."
Dunne, supra note 38, at 1128.
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The appropriate trade-off between enhancing minority representation and
respecting the interests reflected in a territorial-based districting system is
both elusive and an issue of considerable political and [*536] philosophical
conflict. In the absence of some guidelines for making this trade-off, the
likely result will be increasingly inconsistent judicial decisions and
manipulative uses of the VRA by districting bodies. One alternative is to
develop quantitative approaches for evaluating district appearance. In Part III,
we turn to that task.
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92 Mich. L. Rev. 483, *536 LEXSEE
III. Defining District Appearance Consistently
Recent developments in both theory and technology now make it possible to
evaluate district "appearances" in a systematic and consistent way. Quantitative
information can now be generated concerning different aspects of an election
district's shape, including how much its borders meander and how much the area
it covers is concentrated or diffused. In this Part, we show how such
quantitative measures provide a better alternative to judging district
"compactness" than the intuitive approaches courts used before Shaw. In
addition, Shaw elevates the stakes considerably in the search for a workable
means of defining "irregular" districts, for, with a constraint of this sort
constitutionally enshrined, judicial power over the politics of redistricting is
potentially expansive, undisciplined, and explosive. Quantitative measures for
assessing election-district shapes provide perhaps the most promising approach
to turning Shaw into a set of relatively clear and principled guidelines.
The theory of Shaw makes social perceptions about district appearance
central. This might suggest that these social perceptions are what we should
seek to quantify. Nonetheless, for several reasons, we focus instead on district
appearance itself. Although we believe the impulse behind Shaw ultimately rests
on judicial concerns for social perceptions, we believe those concerns must
necessarily operate at a general level, rather than forming the basis for
concrete decisions regarding particular districts. That is, Shaw is not likely
to become a transmission belt through which social perceptions are directly
relayed, case by case, into constitutional doctrine. The spectre of legal
decisions turning on public opinion surveys is no more appealing here than in
other areas in which legal doctrine is nonetheless responsive, in a general
sense, to social perceptions. The problem is not just the unadministrability of
any legal standard grounded on such vaporous foundations. More importantly, the
relevant social perceptions would have to be ones the legal system could
legitimately credit; only perceptions that are properly informed, for example,
and generated under normatively appropriate conditions could plausibly be
relevant. Thus, the relevant social perceptions would have to reflect acceptance
of governing law, such as the VRA itself, as well as awareness of relevant
[*537] general facts, such as, perhaps, the way in which redistricting
routinely operates.
As a result, courts implementing Shaw cannot treat social perceptions as a
brute fact on which to ground decisions, even if we could measure those
perceptions accurately. Courts must inevitably play the more active role of
attributing normativity to certain perceptions; in the mediating legal language
typically used in such contexts, courts must decide which social perceptions to
deem "reasonable." Ordinary observers, for example, might recoil at the shape of
many or most congressional districts today, but Shaw does not penetrate this
deeply into the foundations of current politics. Shaw is designed to deal with
aberrational contexts, not routine ones - with "highly irregular" and "bizarre"
districts, not common ones. Courts will have to determine legitimately and
consistently when this line can be said to have been crossed.
Shaw thus sets into motion constitutional doctrine ultimately concerned with
social perceptions and collective understandings, but a doctrine that courts
must necessarily implement with some critical perspective on these perceptions.
At the moment, there appear to be two alternative methods by which courts might
take on this role. The first is for courts to evolve, on a case-by-case basis,
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a series of qualitative judgments concerning when districts are sufficiently
"irregular" to trigger strict scrutiny. In the context of redistricting, this
common law evolutive approach poses multiple dangers. Individual judges do not
confront enough redistricting cases to be likely to develop sufficiently
informed intuitions about the broader pattern of district shapes. If left to
their untutored qualitative assessments, judges are likely to render
inconsistent and unpredictable decisions, as has occurred with previous efforts
to enforce compactness standards. Yet the costs of uncertainty in this area are
particularly high. Redistricting forces on all sides will struggle to exploit
any uncertainties for political gain. Fomenting yet more litigation and further
delaying the time at which plans become effective create additional costs.
The second alternative for implementing Shaw - the quantitative approach we
develop here - is more promising, not just for implementing Shaw, but for other,
related purposes. First, Shaw requires that values associated with district
appearance be judicially separated from other relevant redistricting concerns;
district appearance triggers strict scrutiny, after which jurisdictions must
offer sufficient justifications to account for "highly irregular" shapes. To
implement this framework, district appearances must therefore be separated, at
least initially, from other districting values. Before Shaw, many commenta
[*538] tors had resisted treating appearance or compactness as of any
intrinsic value; compactness might be associated with relevant substantive
districting values, like preserving communities that shared common political
interests, but commentators viewed compactness as a poor proxy for those values.
n177 Similarly, commentators disagreed as to whether a requirement of
compactness is an important instrumental prophylactic against partisan and other
forms of gerrymandering. n178 [*539] For Fourteenth Amendment purposes,
however, the terms of the debate have shifted. Shaw isolates district appearance
and turns it into a threshold factor for setting strict scrutiny into motion.
Thus, district appearance must now be constitutionally assessed, in and of
itself, regardless of whether commentators might value it intrinsically,
instrumentally, or not at all.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n177. Commentators have generally argued that compact districting directly
advances three principal values: enhanced communication between representatives
and constituents; greater voter knowledge of their representatives and of their
political "neighbors"; and greater trust in the legitimacy of a political system
in which districts appear "fairly" shaped - or, at least, not obviously unfairly
shaped.
With respect to the first value, some have argued that technological changes
- such as telephones, modern highway systems, fax machines, and the like -
considerably undermine the relationship between compactness and effective
communication. See, e.g., Cain, supra note 7, at 32-33. At the same time,
communication still often takes place in group contexts, with legislators
meeting all manner of boards, committees, organizations, governmental bodies,
and so on. Compact districts might facilitate communication because they are
likely to hold in check the number of such groups. Empirical evidence on this
question is slim. "Community-based" districts make it more likely that
constituents can identify their congressmen, though this result does not
necessarily mean that such districts encourage better communication. Richard G.
Niemi et al., The Effects of Congruity Between Community and District Congruity
on Salience of U.S. House Candidates, 11 Legis. Stud. Q. 187 (1986). There is,
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92 Mich. L. Rev. 483, *539 LEXSEE
of course, no guarantee that compact districts enhance communication, but the
question is whether there is any meaningful tendency in this direction.
With respect to voter knowledge, the above study suggests, not surprisingly,
that constituents are more likely to know the names of their congressmen when
the lines of districts and "natural" communities coincide. See id. at 187-88
(citing studies). At the same time, "meaningful" and compact districts are not
necessarily the same. When cities or other political subdivisions are themselves
noncompact, requiring compact districting would be at odds with this very
concern. See Grofman, Vince Lombardi, supra note 7, at 1263 (advocating a
"cognizability," rather than a compactness, standard).
Finally, with regard to the claimed relationship between compactness and
political legitimacy, critics have argued the public knows so little about
districting that any such effect can be safely ignored. See Cain, supra note 7,
at 188-91. Shaw, however, with its evident concern about social perceptions,
appears to reject this argument.
Of course, to the extent that departures from compactness are necessary to
promote other values, such as enhancing fair and effective minority
representation, a complete assessment of compactness must weigh the costs of
departing from it against whatever values it might intrinsically serve. Cain
writes:
Those who argue for the importance of compactness must be willing to accept
limitations on the achievement of equity for minorities.... From the perspective
of the white, median voter in this country, compactness is desirable, since it
enhances the strength of the majority. From the perspective of the nonwhite
population, compactness deprives them of equitable representation for the same
reason.
Id. at 51.
n178. For a strong argument that compact districting does tend to minimize
impermissible gerrymandering, see Justice Stevens's separate opinion in Karcher
v. Daggett, 462 U.S. 725, 755-58 (1983) (Stevens, J., concurring). Nevertheless,
compactness certainly is not sufficient to guarantee fair distribution of power
among competing groups - assuming, for the moment, that fairness is to be
measured through some degree of proportionality between groups in the electorate
and in the representative body. An equitable distribution of power depends on
the geographical distribution of the relevant groups. In addition, computer
programs now allow the creation of large numbers of potential districts, all of
them compact, but differing in their partisan, racial, and other
characteristics. Thus, the ability of compactness to serve as a partial
constraint on gerrymandering is lesser now than previously. See generally Cain,
supra note 7, at 35-38.
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Second, outside of constitutional law, Shaw will also likely pressure courts
to focus more attention on what compactness ought to mean under the VRA.
Statutory requirements of compactness will be implicated in numerous
voting-rights cases, particularly for dispersed minority populations, thus
generating the need for clear guidelines implementing this element of the VRA.
Quantitative measures of compactness are a way of providing clear and
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92 Mich. L. Rev. 483, *539 LEXSEE
consistent standards for courts and reapportionment bodies to follow.
Third, such measures can be used to shift the focus of courts and others
from individual districts, examined in isolation, to the pattern of districting
within a state, as well as nationwide. We can also compare the shapes of
districts historically, enabling examination of the response of district shapes
to various forces over time. This kind of information can make judicial inquiry
into district "appearances" meaningful by establishing the baselines against
which individual districts can be evaluated. Absent such baselines, different
judges are likely to find quite different districts failing their intuitive
conception of "bizarre." This information is also crucial for general public
discussion of where we are and ought to be in the legal regulation of the
redistricting process. Thus, in Part IV, we are able to rank all the current
U.S. congressional districts, compare North Carolina District 12 to other
districts, indicate how many majority and minority districts are designed in
ways that might trigger the strict scrutiny of Shaw, and compare U.S.
congressional districts over time.
The information we provide here should be used carefully, and we must note
several caveats at the outset. As in most legal areas, quantitative measures for
redistricting are not a panacea. With respect to the question in Shaw,
quantitative measures cannot be used mechanically to determine whether a
district is "bizarre." Even after district shapes are catalogued in absolute
terms, the significance of the results will continue to depend on the specific
contexts in which particular districts exist. Maryland, for example, is a
convoluted state, and any "irregular" district there is presumptively less
troubling than a similar district in the square state of Colorado. The results
of our quantitative studies enable meaningful threshold comparisons. The
ultimate signif [*540] icance of any quantitative assessment of district
"appearance," however, necessitates analysis of the specific political and
geographic context in which particular districts originated.
In addition, we do not suggest that there is some ideal level of compactness
that every district ought to meet. Nor do we suggest that there is some
objective level of "highly irregular" that every district ought to avoid.
Neither Shaw nor the VRA entail any requirement that districts meet some
Platonic ideal of shape. Similarly, at what point irregular districts become
"too irregular" is a political and legal judgment about the appropriate
trade-off between competing values; quantitative measures can provide absolute
and comparative information about districts, but they cannot resolve this
question of judgment. Once such judgments are made, however, quantitative
measures can assist in ensuring that they are carried out consistently.
Redistricting is an area in which quantitative standards have demonstrated
their appeal in the past. Once Baker v. Carr n179 declared malapportionment
claims justiciable, legal principles gravitated quickly, indeed almost
ineluctably, to the one-person-one-vote quantitative formula. Although there is
disagreement over the extreme mathematical exactitude the Court has given this
principle, n180 there is little disagreement that one person, one vote is the
appropriate ideal. Quantitative measures of compactness cannot function in
precisely the same way as the one-person-one-vote measure, because no obviously
analogous ideal exists toward which all district shapes should converge. Yet,
after Shaw, similar forces may impel courts toward using quantitative approaches
to define, at least, the outer-boundary constraints the Constitution now imposes
on the conjunction of race-conscious districting and district shape. Given
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92 Mich. L. Rev. 483, *540 LEXSEE
that no approach to redistricting is politically neutral, public confidence in
both courts and redistricting bodies is likely to be enhanced through
quantitative standards capable of being applied in consistent ways.
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n179. 369 U.S. 186 (1962).
n180. See Karcher v. Daggett, 462 U.S. 725 (1983).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
A. The Nature of the Problem
Shaw suggests that North Carolina District 12 is self-evidently so extreme
in design that it stands out at a glance. Thus, while Justice O'Connor
acknowledges the possible "difficulty of determining from the face of a
single-member districting plan that it purposefully distinguishes between voters
on the basis of race," she emphasizes that [*541] "proof sometimes will not
be difficult at all." n181 As another example, she points to the obviously
"tortured" n182 municipal boundaries in Gomillion v. Lightfoot. n183
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n181. Shaw v. Reno, 113 S. Ct. 2816, 2826 (1993). As the Court puts it, in
some cases, a district is "so highly irregular that, on its face, it rationally
cannot be understood as anything other than an effort to "segregate ... voters'
on the basis of race." 113 S. Ct. at 2826 (quoting Gomillion v. Lightfoot, 364
U.S. 339, 341 (1960)).
n182. 113 S. Ct. at 2826-27 (discussing Gomillion).
n183. 364 U.S 339 (1960).
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The task of determining when district appearances are so "highly irregular"
as to require strict scrutiny, however, will be more difficult than these
comments suggest. First, the language of "appearance" obscures the fact that
districts might be oddly shaped along several different dimensions. In the
absence of a clear conceptual understanding of what dimensions of district
appearance are relevant, the basis for judging districts will be unclear.
Different observers will find different aspects of districts to be troubling.
Second, district shapes vary along a continuum; they do not come marked in two
clearly distinct categories of the reasonably regular and the bizarre. Third,
one cannot adequately distinguish the relevant variations among districts
through intuitive, eyeball assessments.
To begin to understand the nature of the problems, consider Figures 2 and 3,
which show thirteen current congressional districts drawn after the 1990 Census.
[*542]
[SEE FIGURE 2(A) IN ORIGINAL]
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92 Mich. L. Rev. 483, *542 LEXSEE
[SEE FIGURE 2(B) IN ORIGINAL] [*543]
[SEE FIGURE 2(C) IN ORIGINAL]
[SEE FIGURE 2(D) IN ORIGINAL]
[*544]
[SEE FIGURE 2(E) IN ORIGIANL]
[SEE FIGURE 2(F) IN ORIGINAL]
[*545]
[SEE FIGURE 2(G) IN ORIGINAL]
[SEE FIGURE 3(A) IN ORIGINAL]
[*546]
[SEE FIGURE 3(B) IN ORIGINAL]
[SEE FIGURE 3(C) IN ORIGINAL]
[*547]
[SEE FIGURE 3(D) IN ORIGINAL]
[SEE FIGURE 3(E) IN ORIGINAL]
[*548]
[SEE FIGURE 3(F) IN ORIGINAL]
Most observers would probably agree that Michigan CD7 (Figure 2(a)) is
considerably more compact than Texas CD18 (Figure 2(g)), and that Michigan CD9
(Figure 3(a)) is more compact than Florida CD22 (Figure 3(f)). Beyond these
observations, it becomes more difficult to make such assessments; but the
districts in Figures 2(a) and 3(a) might also generally seem reasonably compact.
Perhaps there would even be agreement that the districts in Figures 2(g) and
3(f) are irregular, maybe extremely so. Line-drawing problems, however, quickly
become substantial. If the districts in Figures 2(g) and 3(f) were
minority-dominated districts, would their design be so irregular as to be
presumptive evidence of districting processes in which race had exerted too
dominant an influence over other values? What about districts "close to" the
most distorted ones in the country - such as districts "in between" Figures 2(f)
and 2(g) or in between Figures 3(e) and 3(f)?
Keep in mind that there are 428 congressional districts in states with more
than one representative. Given this large number, the range of shapes
illustrated in Figures 2 and 3 is not surprising. Indeed, one would expect an
almost continuous gradation from very regular to very irregular. Of course, a
single court would not have to [*549] consider all 428 districts
simultaneously. Litigation involving a single state would typically involve only
five to twenty districts. Nevertheless, consistent standards are needed to guide
and constrain policymakers. Left to intuitive judgments, policymakers will find
the task of ordering districts by appearance unlikely to yield consensus. n184
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
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92 Mich. L. Rev. 483, *549 LEXSEE
n184. Shaw presumably also applies to state legislative districts. In upper
houses of state legislatures, the number of districts is often 30-50, and in
lower houses the number is often 100 or more. Harold W. Stanley & Richard G.
Niemi, Vital Statistics on American Politics 153 tbl. 4-6 (4th ed. 1994).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Part of the difficulty involved in creating standards stems from the fact
that "the" appearance of a district could mean one of several things. District
shape can be measured along several seemingly relevant dimensions. We will
define these different dimensions in technical detail shortly, but we first
describe them in more intuitive terms.
First, we might ask how dispersed, or spread out, a district is. This
question is commonly taken to mean how efficiently the district covers the
territory it includes: in common terms, the question is how "round" or "square"
the district is, or how "long" it is versus how "wide." n185 From this
perspective, the crucial issue is the degree to which a district has a central
core and the extent to which all points in the district are relatively close to
that core. If we judge districts in terms of how dispersed they are, circular or
square districts will be the most compact. Extremely long and narrow ones are
much more dispersed and hence would be judged as less compact, as would
districts that tie together two or more core areas with narrow corridors.
Dispersion is also worse if "fingers," or other protrusions, stick out from the
main body of a district.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n185. One should not confuse these questions with how big a district is in
absolute size. Districts in sparsely populated areas of a state are necessarily
larger in overall size than those in large urban areas; given
one-person-one-vote requirements, this disparity cannot be avoided.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Second, one might judge districts by the regularity or length of their
perimeters. The important concern in this assessment ought not to be the number
of sides, but how similar and regular the sides are. From this perspective, what
matters is how much a district's borders wander around in contorted ways.
Legislative districts with smooth borders, especially ones of equal length, are
most regular or compact. When borders are not straight or when they repeatedly
twist and turn, perimeter measures will be accordingly low.
Third, we might judge districts in terms of how regularly they distribute
the population in and around the district. We are less accustomed to judging
shapes this way; it does not play a role in elementary geometry. In the context
of legislative districting, however, such a measure makes some sense.
Legislators represent people, not land. [*550] Moreover, the way in which
district lines move through or around population concentrations is at the heart
of concerns regarding such devices as "cracking" or "packing" minority
populations. One way to systematize these concerns is to examine the size of the
population in the district and compare it to the population outside but near the
district. From this perspective, a district that encapsulates most of the
population in some well-defined area would be highly regular. Exclusion of large
numbers of people who live within such an area makes a district fare much
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92 Mich. L. Rev. 483, *550 LEXSEE
worse on this dimension.
Choosing among these different dimensions makes a significant difference in
judgments about the "appearance" of legislative districts. A district can be
"highly irregular" in one dimension but not in others. Consider the contrast
between "dispersion" and "perimeter" in, for example, Texas CD18 (Figure 2(g)).
This district includes most of the city of Houston, is by far the most
Democratic in Texas, and was designed to yield a fifty-one percent black
population (forty-nine percent black voting-age population). The adjoining Texas
CD29 was designed in 1991 as a new Hispanic district, thought to be required
under the VRA, and has a Hispanic population of sixty percent (voting-age
population of fifty-four percent). To achieve these dual objectives, the
redistricters carved heavily Hispanic blocks out of Texas CD18 and moved them
next door into Texas CD29. n186
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n186. The facts concerning these districts are drawn from Michael Barone &
Grant Ujifusa, The Almanac of American Politics 1994, at 1250-51, 1275-76
(Eleanor Evans ed., 1993) (describing the creation and composition of Texas CD18
and Texas CD29, respectively). In the first election in Texas CD29, a Hispanic
did not win the seat. Id. at 1276.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Texas CD18 is not spread over a large area, hence it does not enclose a
highly dispersed population. Despite being part of a large metropolitan area,
its bands of streets and neighborhoods do not stretch out excessively. Although
it contains extremely narrow corridors, it does not, like North Carolina CD12,
stretch between cities many miles apart. Consequently, in terms of the first
dimension described above - dispersion - Texas CD18 is not highly irregular.
Yet, to some observers, the shape of this district is likely to be as troubling
as that of North Carolina CD12. Its borders, especially on the west, meander in
and out in an almost continual dance. In the second sense described above -
perimeter regularity - this district is certainly extreme.
Next, consider Florida CD22 (Figure 3(f)). This district contains the
barrier islands and lucrative beachfront properties of Florida's Gold Coast and
has the highest percentage of over-sixty-five residents of any U.S.
congressional district. This district is not a minority one, though its shape
resulted in part from efforts to maximize the black [*551] percentage in the
adjoining 23d and 17th districts. n187 The borders of Florida CD22 are
relatively smooth. n188 With few exceptions, the district does not snake into
and out of the neighborhoods of cities. While in some places it moves farther
inland than in others, this pattern is obviously necessary to include a
sufficiently large population. In terms of perimeter, this district is fairly
regular. n189 Yet in length and width, the district stretches nearly 100 miles
from north to south and is never more than about five and a half miles wide.
This shape makes it look more like a flagpole than any other district in the
country. In the sense of dispersion - in terms of its territory not being close
together - this district is certainly extreme.
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92 Mich. L. Rev. 483, *551 LEXSEE
n187. Id. at 320.
n188. In part, this apparent smoothness is a function of the scale of the
map. If each city were shown in detail, one would see more border
irregularities.
n189. It turns out, as we shall see, that this district is so extremely long
and narrow that, together with the lengthened western border, it is relatively
noncompact with respect to its perimeter. Nonetheless, at first glance, its
border characteristics do not appear troubling.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Intuitive assessments based on visual appearance alone are thus likely to
produce tremendous uncertainty. Indeed, if we now return to what is frequently
considered the most egregious and self-evident example of the manipulation of
district boundaries, the classic Gomillion case, the difficulties become even
more obvious. Consider Figure 4, the Tuskegee municipal boundaries before and
after the city council redrew them. [*552]
[SEE FIGURE 4 IN ORIGINAL]
Justice O'Connor suggests that this example is extreme on immediate inspection.
Yet, in terms of visual appearance alone, the twenty-eight-sided figure hardly
looks more irregular than a number of the districts in Figures 2 and 3. n191 If
the Tuskegee boundaries are extreme simply because of the way they look, the
majority of congressional districts would be equally extreme. n192 What actually
makes Gomillion easy and exceptional is that, in the context of Tuskegee, this
particular pattern of line drawing had such a racially differential effect that
it could only be a blatant example of a racist design to exclude black residents
[*553] from the political boundaries of the town. n193 Any intuition that the
appearance of this twenty-eight-sided figure, standing alone, is an example of
extreme manipulation of district appearance would be considerably misguided.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n190. The source of this map is Gomillion v. Lightfoot, 364 U.S. 339, 348
(1960).
n191. To be sure, one projection sticks out incongruously from the side of
the main body of the new boundaries. Yet even Wisconsin CD9 (Figure 2(d)), which
appears by comparison to be fairly regular, has an appendage on the north side
that sticks out some miles from the main portion of the district.
n192. Two hundred thirty-nine of the 1990s congressional districts are less
compact than the reconfigured Tuskegee district on both of the quantitative
measures introduced below.
n193. The Tuskegee case was so extreme because the effect was "to remove from
the city all save only four or five of its 400 Negro voters while not removing a
single white voter or resident." Gomillion v. Lightfoot, 364 U.S. 339, 341
(1960).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
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92 Mich. L. Rev. 483, *553 LEXSEE
Thus, both abstract considerations of the different ways one can judge
appearance and the current array of congressional districts argue for a more
systematic, consistent way of comparing district appearances. Fortunately, in
recent years, quantitative methods for assessing district appearance have been
developed. The results are expressed in terms of a district's compactness. While
measures of compactness are only now being introduced into redistricting
procedures and their use is not yet settled, Shaw makes certain quantitative
measures more meaningful and relevant than others.
B. Three Quantitative Measures of Compactness
Compactness has been part of the redistricting lexicon for over a century,
but only recently has it been rigorously and quantitatively defined. Even with
the development of appropriate, theoretical definitions, the technology for
measuring compactness was not effectively available until the 1990s. The recent
digitization of U.S. geography carried out by the U.S. Census Bureau has made it
possible to apply the new quantitative approaches with considerable accuracy.
n194
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n194. The cost of calculating district compactness scores does not seem to
have stopped states and even some local jurisdictions from making them. The
entire cost of redistricting has increased dramatically in recent years, but,
given requirements for strict population equality, for example, the marginal
additional burden of calculating district compactness should not be prohibitive.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Compactness can be measured along several dimensions and in different ways.
In a systematic review of proposed conceptions of compactness, which one of the
authors of this article led, n195 three distinct dimensions emerged as most
relevant. n196 These dimensions are the traits we have described colloquially
above: dispersion, perimeter, and population. We now provide more technical
definitions of each and then employ the two of them to rank and analyze
congressional districts throughout the country. [*554]
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n195. Richard G. Niemi et al., Measuring Compactness and the Role of a
Compactness Standard in a Test for Partisan and Racial Gerrymandering, 52 J.
Pol. 1155 (1990).
n196. These characteristics also turn out to be the basis for most
operationalizations of the term.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
1. Dispersion
The term dispersion captures "how tightly packed or spread out the geography
of a district is." n197 Underlying all dispersion measures is the notion that a
perfect district is a regular, simple shape, usually a circle. Different
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92 Mich. L. Rev. 483, *554 LEXSEE
quantitative measures exist because different ideal shapes can be taken as a
starting point n198 and because there are multiple ways of measuring deviations
from the ideal shape. n199
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n197. Niemi et al., supra note 195, at 1160.
n198. Some might suggest that hexagons provide a better base than circles
because hexagons can fill an entire space, in principle, with no "in-between"
area left over. Given the irregular shapes of states and other jurisdictions,
however, it is unlikely that any real area could be divided into a set of
perfect hexagons, even if equal population were not a consideration. Perfection
in the real world of districting is impossible regardless of the theoretical
standard one uses.
n199. Because squares - which have equal length and width - are considered
relatively compact, some have suggested that length and width should be the
basis of quantitative measures. See, e.g., Curtis C. Harris, Jr., A Scientific
Method of Districting, 9 Behavioral Sci. 219, 221 (1964). The difficulty is that
no unique method exists of measuring the length and width of irregular shapes.
Length might well be the distance between the two points farthest apart in the
district. Yet what is the width? How would one judge it in congressional
districts such as those shown in Figures 2(f) or 3(c)?
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
During the 1990s round of districting litigation, one approach became
common. This technique measures the ratio of the district area to the area of
the minimum circumscribing circle. n200 Such a test is intuitively meaningful
and has useful technical features. Operationally, it involves taking the areas
of the district and of the smallest circle that completely encloses the
district. The ratio of the former to the latter yields the dispersion
compactness score. n201 Hence, a circular district is perfectly compact. A
square district is relatively compact because, when one draws a circle around
the district, there is little area inside the circle that is not also in the
district. A long, narrow district, or one with "fingers" or other extensions, is
less compact because it takes a large circle to enclose the entire district, yet
much of that circle is empty.
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n200. Earnest C. Reock, Jr., originally defined this measure, Earnest C.
Reock, Jr., Note, Measuring Compactness as a Requirement of Legislative
Reapportionment, 5 Midwest J. Pol. Sci. 70, 71 (1961), which Niemi and others
catalogued as Dispersion 7. Niemi et al., supra note 195, at 1161.
n201. In a practical sense, it is not always easy to measure areas of complex
shapes, though computer programs are now available for this purpose.
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We arranged the congressional districts in Figure 3 in descending order of
dispersion, measured in this way. Districts do not come much more square than
Michigan CD9. Minnesota CD7 is too rectangular to be perfectly compact, but it
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92 Mich. L. Rev. 483, *554 LEXSEE
still ranks high. Maryland CD3 circles around Baltimore and includes no area
west of the city, which lowers its compactness. Ohio CD19 is stretched out,
relatively long and narrow, and is consequently even less compact. Florida CD3
[*555] essentially has no central core; not surprisingly, it has a very low
compactness score. The extreme flagpolelike district discussed above, Florida
CD22, has the lowest dispersion score of any district in the country.
Dispersion scores theoretically range from 1.0, which is perfectly compact -
a circle - to 0.0 - a straight line. For the districts in Figures 3(a) to 3(f),
the scores are .50, .40, .30, .20, .11, and .03, respectively. With an
appropriate technical measure of how dispersed districts are, we are thus able
to rank order congressional districts as well as to provide a more precise sense
of the magnitude of the differences between the "appearance" of various
congressional districts. This analysis can provide guidance to reapportionment
bodies and discipline the judicial assessments Shaw now requires.
2. Perimeter
Instead of focusing on the dispersion of a district, we can examine the
extent to which district borders wander in irregular ways. We do this through a
perimeter measure; the most effective technical measure of perimeter relates
length of the district perimeter to the area the district includes. n202 The
intuitive justification for this measure is that a given perimeter length will
enclose the most area if the shape it surrounds is a circle. Once again, then, a
circle is the baseline against which districts are compared. A precise
definition of the measure we use here is the ratio of the district area to the
area of a circle with the same perimeter. n203 [*556]
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n202. Intuitively, one might think the most obvious measure of perimeter is
overall perimeter length, measured in distance units, such as miles or
kilometers. The Colorado State Constitution incorporates this approach for its
state legislative districts. Colo. Const. art. V, 47. While easy to grasp, this
measure has certain undesirable properties, especially when comparing
congressional districts across the nation. First, because overall length is very
sensitive to the absolute size of a district, one can only sensibly apply it to
districting plans taken as a whole. That is, as noted above, it makes little
sense to compare the overall lengths of the boundaries of rural and urban
districts. See supra note 185. Rural districts, no matter how smooth and regular
their borders, will register longer boundaries than urban ones, no matter how
convoluted the boundaries of the latter.
Comparing alternative districting plans on the basis of the overall boundary
lengths for all the districts in the state does make sense. Nevertheless, given
regional variations between urban and rural areas, one cannot reasonably compare
individual districts, even within one state. In addition, comparisons of
aggregate boundary lengths across states are inappropriate because the shapes of
the states will greatly affect such measurements. For these reasons, we do not
use this measure here.
n203. In equation form, this definition is expressed as 4pA/P'2' , where A is
the area and P is the perimeter of the district. One can easily confirm that a
circle has a perimeter score of 1, as follows. If the perimeter of a circle is
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92 Mich. L. Rev. 483, *556 LEXSEE
P, by definition, P = 2pr, where r is the radius of the circle. In addition, A,
the area of the circle, is pr'2' . Then, perimeter score = 4p(pr'2' )/(2pr)'2' =
1. This measure is called the Schwartzberg measure in Daniel D. Polsby & Robert
D. Popper, The Third Criterion: Compactness as a Procedural Safeguard Against
Partisan Gerrymandering, 9 Yale L. & Poly. Rev. 301, 348-49 (1991). In fact, as
Polsby and Popper point out, it is a slight variation (and improvement) of the
measure originally proposed by Schwartzberg. Id. at 349 n.204; see also Joseph
E. Schwartzberg, Reapportionment, Gerrymanders and the Notion of "Compactness,"
50 Minn. L. Rev. 443 (1966).
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In general, districts that have smooth borders and relatively regular shapes
will have shorter boundaries and enclose considerable area given the boundary
length. They therefore score high on this perimeter measure. Convoluted district
borders substantially lengthen the boundary without enclosing more area and
hence score low.
We arranged the congressional districts in Figure 2 in descending order of
perimeter scores. Michigan CD7 has nearly straight borders and is relatively
square-shaped. Mississippi CD5 is regularly shaped and has mostly smooth
borders, except along the Mississippi River and Gulf Coast. n204 California CD22
has a stair-step border on the northeast. This feature, in addition to the
coastline and two small islands, lowers its perimeter score, but the district
remains sufficiently regular for its score to fall in the middle of the district
scores shown. Wisconsin CD9, Texas CD14, and North Carolina CD7 have increasing
boundary twists and turns, and they therefore score progressively lower.
Finally, the border of Texas CD18 is extraordinarily long for the area it
encloses as a result of the many narrow corridors, wings, or fingers that reach
out to enclose black voters, while excluding nearby Hispanic residents.
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n204. These observations illustrate the point that natural features will
affect compactness scores - dispersion as well as perimeter. The effects of
natural features are a reason that one cannot use such scores in a mechanical
fashion to eliminate districts that fall below some predetermined level. For
more discussion, see infra text accompanying notes 231-32.
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Perimeter scores, like dispersion scores, theoretically range from 1.0 to
0.0. The perimeter scores for the districts in Figures 2(a) to 2(g) are .50,
.40, .30, .21, .10, .05, and .01, respectively. Using this measure, we can rank
all congressional districts in terms of the regularity of their borders, as well
as suggest the magnitude of differences between districts. If courts applying
Shaw focus on district perimeter, this quantitative approach can yield a far
more systematic and clear set of norms than intuitive judicial assessments.
3. Population
A third focal point for concerns of district "appearance" is sometimes taken
to be the way in which a district distributes voters. We can translate this
concern into a population measure, which focuses not on shape alone, but on
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92 Mich. L. Rev. 483, *556 LEXSEE
the distribution of population between a district and its surrounding territory.
Developing a quantitative measure requires some way of comparing the district's
population with the "nearby" excluded population. Commentators have suggested
two [*557] similar measures; both are ratios in which the numerator is the
district's population. n205 In the most common measure, the denominator is the
population in what is called the "rubber-band" area around the district - the
area that would be inside a rubber band stretched tightly around the district.
n206 In the alternative measure, the denominator is the population in the
minimum circumscribing circle - it excludes populations that would fall outside
the state. Both measures vary from 1.0 to 0.0. n207 For reasons we describe in
Section III.C, population measures do not seem to reflect the concerns Shaw
expresses. Thus, we do not provide quantitative assessments of the districts in
Figures 2 and 3 in terms of population measures.
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n205. Niemi et al., supra note 195, at 1162 tbl. 1.
n206. In technical terms, this measure is described as the minimum convex
figure that completely contains the district.
n207. For the "rubber-band" definition, a perfect district would be one in
which the border had only "convex" angles - that is, a rubber band stretched
around it would have no areas that are outside the district but inside the
rubber band. For the alternative definition, a circle would receive a score of
1.0.
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C. The Relevant Measures Under Shaw
Of the three potentially relevant measures of compactness - dispersion,
perimeter, and population - the first two best capture the concerns Shaw
expresses. Although the decision offers little in the way of specific criteria
for judging "bizarre" appearances, it invokes many synonyms for widely dispersed
districts and for those whose borders are severely distorted. Indicating concern
for perimeter manipulation, Shaw refers to Gomillion as employing "a tortured
municipal boundary line," n208 and Shaw similarly takes note of the way in which
North Carolina CD12 "winds in snake-like fashion" through various areas. n209
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n208. Shaw v. Reno, 113 S. Ct. 2816, 2826-27 (1993).
n209. 113 S. Ct. at 2821.
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At the same time, Shaw also refers to the concentration of a "dispersed"
minority population and to individuals "widely separated by geographical and
political boundaries." n210 In describing District 12, the Court notes that it
is "approximately 160 miles long and, for much of its length, no wider than the
I-85 corridor." n211 These comments refer not to twists and turns of district
boundaries, but to how spread out the district is, both geographically and
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92 Mich. L. Rev. 483, *557 LEXSEE
with respect to the types of areas - rural versus urban, farming versus
manufacturing - it encompasses. Similarly, the proposed state senate district,
about which [*558] the Court intimated doubts in Growe v. Emison, n212 has a
relatively smooth, but elongated, border. n213 These comments point to concerns
about a district's dispersion.
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n210. 113 S. Ct. at 2827.
n211. 113 S. Ct. at 2820-21.
n212. 113 S. Ct. 1075 (1993); see supra notes 157-58 and accompanying text.
n213. 113 S. Ct. at 1085.
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For these reasons, we believe that if courts and reapportionment bodies look
to quantitative approaches to implement Shaw, the dispersion and perimeter
measures are the most appropriate. Population measures do capture certain
manifestations of partisan or racial gerrymandering, but they do not measure
"shape" in the usual sense and therefore do not necessarily reflect the problems
Shaw identifies. n214 In our quantitative assessment of congressional districts
throughout the country, we will therefore rely on only the dispersion and
perimeter measures.
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n214. Having for the first time been able to calculate and assess fully a
population measure, we are able to see that it measures, in part, the type of
population the districts include and exclude, and not simply the degree to which
the districts retain nearby populations. In particular, largely rural or
suburban districts may tend to circle around an urban area rather than
incorporate a portion of the city itself. This pattern often leaves a large
population in the "rubber-band" or circle area, lowering the population score.
Favoring higher scores would thus give preference to districts that mixed urban
and suburban or rural areas. For example, Colorado CD4, near Denver, and Ohio
CD13, near Cleveland, are outlying districts that have relatively low scores on
the population measure because they abut large urban areas. A largely rural or
suburban district that circles around an urban area also lowers the dispersion
measure. The effect, however, is especially strong for population measures; the
excluded land area may not be great, but the excluded population will often be
large. For these reasons, we will refrain from further use of population
measures.
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In interpreting the results that follow in Part IV, one must keep in mind at
least three complexities, to which we have alluded above. n215 First,
compactness, as quantified, varies on a continuum from zero to one. The point
when the compact becomes the noncompact requires judgments about social
perceptions that Shaw barely begins to articulate. n216
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92 Mich. L. Rev. 483, *558 LEXSEE
-
n215. See supra text accompanying notes 177-80.
n216. Lest this statement seem to render the concept meaningless, consider
the analogy of outdoor temperature. There is no bright line dividing hot from
warm or warm from cold. Although there are some meaningful points on the
temperature scale, such as the point at which water freezes, those points do not
provide an objective division between hot and cold. Temperature is relative. Yet
we all make use of temperature information daily.
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Second, although both dispersion and perimeter appear relevant under Shaw,
they measure different dimensions. Recall the contrast between the tight core
and wandering boundaries of Texas CD18 (Figure 2(g)) and the highly dispersed,
but smooth bordered, Florida CD22 (Figure 3(f)). n217 Different quantitative
measures will not al [*559] ways rank individual districts, and even
districting plans, in identical order. n218 For many districts, the two measures
will yield similar results, but, when they conflict, questions will remain as to
which measure, or what combination of the two measures, should be the focus.
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n217. Can one simply combine dispersion and perimeter scores by averaging
them? The problem with averaging the two scores is that it can mask situations
in which one score is high and the other low. In principle, one might have a
district with a dispersion score of .80 and a perimeter score of .02. The
average - .41 - appears fairly reasonable; indeed, it is greater than the mean
score for the congressional districts in many states. Nevertheless, it hides the
extremely low perimeter score. Such extreme situations are not likely to occur
in practice, but the data we present below, see infra Table 3, reveal a number
of situations in which the average does not convey an extremely low score on one
- usually the perimeter - measure. See supra text accompanying note 186 for the
discussion of Texas CD18.
n218. Niemi et al., supra note 195, at 1167-76, demonstrate this point with
respect to entire plans.
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Third, one must take care in comparing compactness scores across states and
between different types of jurisdictions. The more compact a state as a whole,
the more one might expect its individual districts to be compact. n219
Similarly, as a general rule, we might expect state legislative and local
districts to be more compact than congressional districts. n220 Contextual
differences of these sorts must be considered before drawing ultimate
conclusions concerning comparisons across districts. At the same time, Shaw
seems to discuss district appearance in absolute terms or as a generic concept;
before requiring strict scrutiny for District 12, the Court did not compare it
to other congressional districts in North Carolina or anywhere else. With the
quantitative measures defined and these caveats in mind, Part IV analyzes the
compactness of congressional districts throughout the country.
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92 Mich. L. Rev. 483, *559 LEXSEE
-
n219. Note that some states with water boundaries define the perimeters of
the district as extending into the water - for example, a relatively straight
line in the middle of a river dividing two states. Consequently, one cannot
always equate the apparent shape of the state with the compactness levels
possible.
n220. Federal constitutional requirements of one person, one vote are more
stringent for congressional districts. For state legislative districts, the
Court has declared population deviations of up to 10% to be presumptively valid
and has upheld deviations up to 16.4% while noting that the latter "approach
tolerable limits." Brown v. Thompson, 462 U.S. 835, 842 (1983); Mahan v. Howell,
410 U.S. 315, 319, 329 (1973). In contrast, the standard for a congressional
district remains that the district be "as mathematically equal as reasonably
possible." White v. Weiser, 412 U.S. 783, 790 (1973); see also Karcher v.
Daggett, 462 U.S. 725 (1983) (finding unconstitutional for congressional
districts an average deviation from absolutely perfect equipopulation of 0.1384%
when the maximum deviation of any one district was only 0.6984%.). The stricter
the requirement of population equality, the more districts are likely to deviate
from compactness. Note, though, that some state constitutions require nearly
absolute equality of state legislative districts.
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IV. The Compactness of Congressional Districts in the 1980s and 1990s
In this Part, we apply our quantitative methods to answer three questions
that Shaw raises. First, we compare North Carolina District 12 to other
districts in the state to determine the extent to which [*560] District 12
is aberrational. Second, we examine post-1990 congressional districts throughout
the country to determine which districts, and how many, have dispersion or
perimeter scores comparable to District 12. Specifically, we determine how many
African-American-dominated, Hispanic-dominated, and white-dominated districts
have shapes that appear, at least initially, to be as irregular as District 12.
As a related point, we also show how many congressional districts would be
affected if courts translated Shaw into an absolute requirement that districts
not exceed some specific measure of compactness. Finally, we compare the shape
of congressional districts in the 1990s with those in the 1980s to determine
whether districts have become less compact in recent years. If they have not,
Shaw would constitute a sudden change in the legal rules governing districting.
If they have, Shaw would not change the rules in the middle of the game, but
rather would be a response to the changed context of districting.
A. North Carolina District 12 in the Context of the 1990 North Carolina
Redistricting Plan
After the Justice Department's denial of preclearance for its first effort
at redistricting, the North Carolina General Assembly eventually designed the
twelve-seat congressional districting plan that took effect in time for the 1992
congressional elections. As a map of this plan shows, n221 it included several
districts, in addition to CD12, that many observers might consider irregularly
shaped.
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92 Mich. L. Rev. 483, *560 LEXSEE
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n221. See infra Figure 5.
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[*561]
[SEE FIGURE 3 IN ORIGINAL] [*562]
Several facts immediately stand out. First, in a certain obvious sense,
District 12 is unlike any other district in that it wanders through the middle
of the state as a long, thin line. On the other hand, it might be less distinct
than many readers would expect. Shaw emphasizes the extreme length of District
12, but the northwestern-most district, District 5, covers more miles east to
west and a similar number of miles north to south. Indeed, many readers may be
surprised by how many districts in North Carolina fall considerably short of
being square or rectangular. We wonder whether even two districts satisfy many
readers' intuitive view of how districts should be drawn. In general, this map
confirms the fact that district shapes vary along a continuum and that
separating them through an eyeball assessment is extremely difficult. Is
District 1, 2, 3, 7, or 10 considerably more compact than District 12? How can
one meaningfully compare the appearance of these other districts with District
12 and with each other?
In Table 2, we provide the dispersion and perimeter scores for the 1990s
North Carolina congressional districts:
[SEE TABLE 2 IN ORIGINAL]
With these quantitative assessments, we can reach one confident conclusion.
District 12 is certainly the least compact of North Carolina's districts;
measured either in terms of dispersion or perimeter, District 12 ranks lowest in
the state. Whether it is so unique as to be consid [*563] ered an aberration,
however, becomes a matter of judgment. In terms of the dispersion measure,
District 12 falls far below any other district, n223 even when compared to its
nearest competitor, District 5. Along this dimension, most other districts are
considerably more compact. This comparison means that District 12 has less of a
central core than all other districts or, conversely, that it is relatively
longer and narrower than other districts. It incorporates a significantly more
geographically dispersed population. With respect to district perimeters,
however, District 12 is far less unusual. While it remains the least compact
when judged this way, the perimeter scores for nine of the twelve districts are
less than 0.10. These scores are quite low compared to districts throughout the
country. n224 Indeed, almost all the districts in North Carolina have perimeters
that could be classified as quite, if not extremely, irregular. n225 To
observers who focus on CD12 in isolation, this result might come as a surprise.
It might also raise questions as to whether the "appearance" of any
congressional district ought to be evaluated on its own or only in the context
of the other districts in the same redistricting plan. Perhaps irregular
minority districts are, or should be, less troubling when contained within a
redistricting plan that employs similarly contorted majority-dominated
districts. n226 In Shaw, the Court's first entry into this arena, however, the
Court assessed CD12 in isolation from other districts in the same plan.
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n222. Information provided by Election Data Services, Inc.
n223. Just as there is no bright line between compact and noncompact
districts, there is no one number that determines whether the difference between
compactness scores is significant. Clearly, a small difference - for example,
.01 - is not meaningful, and certainly the larger the difference, the more
likely it is that the scores are meaningfully different. A given difference has
to be evaluated at least in the context of: (a) whether the difference is due to
geographical or other obvious factors - for example, a case in which adjoining
districts are "reoriented" so that the common border is now along a meandering
river, or a case in which one district follows noncompact subjurisdiction
boundaries while another is made compact by crossing those boundaries; (b) the
size of the difference in both dispersion and perimeter score - it can even
happen that differences in dispersion and perimeter scores are contradictory;
and (c) whether the comparison is of the average scores for entire plans or of
the scores of specific districts - a plan average may be based on scores of a
large number of districts, so even if a few districts in the plan are made
substantially more (or less) compact, the average across all districts may not
change much.
n224. Nationwide, 13% of congressional districts have perimeter scores below
0.10. See infra Table 3.
n225. Note that only Districts 1 and 12 are majority-minority districts.
n226. See supra text accompanying note 165.
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B. The Compactness of 1990s Congressional Districts Throughout the Country
With the quantitative measure we have described above and recently developed
technology, we are able to rank congressional dis [*564] tricts throughout
the country in terms of their dispersion and perimeter. n227 In Table 3, we
provide an abbreviated version of this information by listing the congressional
districts whose dispersion or perimeter score (or both) is relatively low. In
choosing the cutoff points used in Table 3, we do not imply that all districts
below those points, or only those districts, are vulnerable after Shaw. Later in
this section, in Table 4, we show how many districts, majority and minority, are
affected when a range of different cutoff levels are used to define "low"
dispersion and perimeter scores. n228 The cutoff points in Table 3 are somewhat
arbitrary, n229 and on each dimension they are higher than the scores of North
Carolina District 12. Nonetheless, because they identify the districts that are
objectively least compact, these are the most important tables we present for
the purpose of Shaw's future application.
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n227. We have also ranked them in terms of the population measure, but for
reasons discussed above, see supra text accompanying notes 208-14, we do not
provide that information here.
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92 Mich. L. Rev. 483, *564 LEXSEE
n228. See infra Table 4.
n229. A historical comparison may be of interest: as suggested above, the
"uncouth twenty-eight-sided" figure in Gomillion is not particularly noncompact
by the standards of the 1990s. See supra notes 190-91 and accompanying text. We
estimate its dispersion score to be in the neighborhood of .41, and its
perimeter score to be approximately .34. The dispersion score puts the district
above the average 1990s congressional districts in all but seven states; the
perimeter score is above the average in all but eight states.
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[*565]
[SEE TABLE 3 IN ORIGINAL]
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n230. Information provided by Election Data Services, Inc.
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One must make comparisons carefully because of the effects of state shapes.
n231 Twenty-eight congressional districts fall below the [*566] compactness
levels we have selected. In two cases, however, the low scores are clearly
artifacts of their unusual geography; they can be quickly dismissed because
geography, not legislative politics, immediately accounts for their apparently
low compactness. Hawaii CD2 is composed of islands, and California CD36 includes
two islands as well as part of the coast in the greater Los Angeles area. n232
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n231. One of the authors previously wrote that we should "almost always"
limit comparisons to one state or jurisdiction. Niemi et al., supra note 195, at
1176. Professor Niemi now regards nationwide comparisons as more useful than
that statement would suggest, as long as one makes them with sensitivity to the
shapes of states and to other complicating factors such as islands and coast or
shorelines.
n232. In both cases, the islands are well spread out, thus greatly lowering
the dispersion score. The perimeter score is also reduced because the perimeter
is calculated around each island - as well as mainland area - separately.
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With respect to the remaining districts, one result is immediately striking.
If we rather crudely consider dispersion and perimeter simultaneously, by simply
adding the two scores, North Carolina CD12 turns out to be the worst district in
the nation. In this specific sense, this district is truly exceptional. Thus, if
a district must be at least as "bizarre" as District 12 to trigger strict
scrutiny, and if bizarreness is measured by adding dispersion and perimeter
scores, District 12 stands alone. This result is potentially of considerable
significance: if Shaw is applied by adding the quantitative and perimeter
measures used here, no other current congressional district is as extreme as
that in Shaw.
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92 Mich. L. Rev. 483, *566 LEXSEE
At the same time, District 12 is not a statistical outlier under this
combined approach, for other districts are not far behind. New York CD8 and
Florida CD22 are nearly at the level of North Carolina CD12 on both measures,
followed closely by Florida CD3 and CD17, Louisiana CD4, New York CD12, and then
by Florida CD18 and New Jersey CD13.
While combining the two measures in this way is revealing, it poses several
theoretical and conceptual problems. Most significantly, Shaw provides no
guidance as to whether a district should be considered "highly irregular" if it
is extreme on either dimension - dispersion or perimeter - alone or only when
these two dimensions are combined. This point is especially relevant for
districts like the previously discussed Texas CD18, which is not spread over a
large area but does have a very irregular border. n233
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n233. If one averages the dispersion and perimeter scores for Texas CD18
(Figure 2(g)), the resulting score is .185, which does not place it among the 25
least compact congressional districts in the nation.
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If we focus on dispersion scores alone, North Carolina CD12 turns out to be
the second worst in the nation, n234 with the long, narrow district we described
earlier, Florida CD22, at the bottom. n235 Other [*567] districts, however,
follow close behind. If Shaw requires that CD12 be deemed noncompact, the
question of how to treat districts that are similarly, but not quite as badly,
dispersed - such as New York CD8 (majority white) or Florida CD17 (majority
black) - remains open.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n234. We leave aside the cases of California CD36 and Hawaii CD2 because they
are artifacts of the unusual geography of the two states.
n235. Political observers describe this oddly shaped district as a result of
the way in which the Voting Rights Act was interpreted in Florida. The beach
towns were apparently isolated when the adjoining 23d and 17th districts, just
inland from the coast, were designed as minority-dominated districts. From this
perspective, the oddly shaped coastal district is the residue of an effort to
create minority-dominated districts. See generally Barone & Ujifusa, supra note
186, at 320-21 (describing Florida CD22 and the redistricting process).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
If we focus on perimeter irregularities alone, North Carolina CD12 remains
extreme, but several other districts are equally extreme. Even more clearly than
with dispersion, compactness falls along a continuum when we focus on the shape
of boundary lines. Distinguishing the "unusual" from the "highly irregular" or
"bizarre" inevitably requires seemingly arbitrary cutoffs.
Note that over half the districts in Table 3 are majority white. In part,
this distribution occurs because majority-white districts that border on
irregular minority-majority districts necessarily incorporate those
irregularities into their own boundaries. n236 In absolute terms, a greater
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92 Mich. L. Rev. 483, *567 LEXSEE
number of extremely noncompact districts - as defined in Table 3 - are
white-controlled districts. In relative terms, however, minority districts would
currently suffer more from any rule that barred districts with scores below the
levels of dispersion and perimeter in Table 3. The fifteen majority-white
districts listed constitute only four percent of the 370 majority-white
districts in the country. But the six majority-black districts are nineteen
percent of the thirty-one majority-black districts nationwide, and the four
majority-Hispanic districts are twenty percent of the country's twenty
majority-Hispanic districts. n237 In addition, given our earlier analysis, n238
Shaw might have little or no effect on any of the extremely irregular
white-dominated districts.
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n236. In addition to Florida CD22, Louisiana CD6, New York CDs 5, 7-9, and
North Carolina CD7 are each majority-white districts that share parts of borders
with a minority district.
n237. All these figures exclude districts in which no one racial or ethnic
group is a majority. The exact numbers, but not the conclusion, would change if
we counted those districts. Stanley & Niemi, supra note 184, at 43-44 tbl. 1-17,
lists congressional districts with a majority-minority population, based in part
on Election Data Services data.
n238. See supra text accompanying notes 181-220.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Table 3 further reveals that a few states have the most at stake in the way
Shaw is applied. More than three-quarters of the districts in Table 3 are
concentrated in only five states: Florida, Louisiana, New York, North Carolina,
and Texas. In at least some of these states, Shaw has already influenced
litigation. n239 That so many irregular dis [*568] tricts are concentrated in
a few states will exacerbate the problem of choosing the relevant baseline for
assessing districts. As noted earlier, judges might evaluate an individual
district against the mean compactness scores of other districts in that state.
Alternatively, judges might examine an individual district in isolation or,
perhaps more meaningfully, by comparing it to the kind of nationwide districting
standards we make available in this article.
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n239. See, e.g., League of United Am. Citizens v. Clements, 999 F.2d 831 (5th
Cir. 1993) (en banc); Hines v. Mayor of Ahaskie, 998 F.2d 1266 (4th Cir. 1993);
Kimble v. County of Niagara, 826 F. Supp. 664 (W.D.N.Y. 1993).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As noted, the cutoffs in Table 3 are somewhat arbitrary. In Table 4, we
shift these threshold levels, while keeping them at the low end of the spectrum,
and show how many minority and majority districts are affected as the
"appearance" threshold changes.
[SEE TABLE 4 IN ORIGINAL]
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92 Mich. L. Rev. 483, *568 LEXSEE
The results further illustrate our argument that congressional districts lie
along a compactness continuum. As cutoff levels are raised, even by small
amounts, more and more districts fall below them. The levels in Table 4 also
give a more concrete idea of the degree of compactness of districts at the low
end of the spectrum. For example, one out of every twenty congressional
districts currently in use has a perimeter score no higher than that of North
Carolina CD7 (Figure 2(f)), and [*569] more than one in ten has a score less
than that of Texas CD14 (Figure 2(e)).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n240. Information provided by Election Data Services, Inc.
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The number of minority districts below various cutoffs goes up more slowly.
Nonetheless, the results in Table 4 show in stark fashion the tension between
the goals of more minority districts and high levels of compactness, at least as
congressional districts were drawn before Shaw. If courts were to define "highly
irregular" as districts that violated the strictest standards of both dispersion
and perimeter that Table 4 uses, seventeen of the current fifty-one
single-minority districts in the country would be subject to strict scrutiny.
C. Compactness of Congressional Districts over Time
In response to Shaw, some might argue that the Court's sudden concern with
district appearances arose only when states began to use unusual boundaries to
create minority-dominated districts. Those who take this view necessarily assume
that districts have always been as contorted as they are presently. If this
premise is right, Shaw might be taken to reveal a cynical or even invidious
concern with district shapes only when they benefit minorities.
To test this premise, we compared the compactness of congressional districts
in the 1980s and the 1990s. n241 We first focus on North Carolina, which had
eleven districts in the 1980s. Table 2 contains the dispersion and perimeter
scores for the 1990s districts; n242 Table 5, below, provides these scores for
the 1980s districts.
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n241. As noted earlier, the ability to calculate compactness scores has been
developed only recently. See supra text accompanying note 194.
n242. See supra Table 2.
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[*570]
[SEE TABLE 5 IN ORIGINAL]
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92 Mich. L. Rev. 483, *570 LEXSEE
n243. Information provided by Election Data Services, Inc.
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As these tables reveal, districts became significantly less compact, at
least in North Carolina, after the 1990 round of redistricting. In terms of
dispersion, all but one district had a score of .30 or above in the 1980s while,
today, only five of the twelve districts are that compact. The perimeter
measure, however, reveals even more striking results. Every current district,
with the exception of CD4, has a considerably more distorted perimeter than the
worst North Carolina district in the 1980s. Average perimeter compactness has
plummeted. Although most North Carolina districts are still built around a core
area - though less so than in the 1980s - they meander in and around that area
to a far greater extent than previously. Compared to the 1980s districts,
especially on the perimeter measure, almost all the current districts are
significantly more irregularly designed.
For the most part, the pattern in North Carolina turns out to be a general
one. Table 6 provides a state-by-state comparison of district compactness,
measured in terms of dispersion and perimeter, for the 1980s and for the 1990s.
We also show the numbers of districts falling below various levels of
compactness. [*571]
[SEE TABLE 6 IN ORIGINAL] [*572] [*573]
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n244. Information provided by Election Data Services, Inc.
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The nationwide figures make it clear, of course, that low compactness is not
an invention of the 1990s. A few districts in the 1980s were extremely
noncompact, nearly as much so as the least compact districts of the 1990s. In
addition, a few states had significantly less compact districts in the 1980s
than in the 1990s. California is the prime example. Under the Burton districting
plan, considered one of the most notoriously partisan gerrymanders in recent
years, several extremely contorted districts were created, making overall
compactness scores lower than in the 1970s n245 and lower than those in most
other states.
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n245. See Niemi et al., supra note 195, at 1175.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In general, however, there is no denying that the present congressional
districts are less compact than those they replaced. n246 Between [*574] the
1980s and 1990s, average compactness levels dropped, precipitously in the case
of district perimeters. More importantly, at extremely low levels of
compactness, the number of districts increased sharply. Overall, the number of
districts with very low scores rose substantially, with the decline in perimeter
scores the most noticeable. Nationwide, the number of districts with scores at
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92 Mich. L. Rev. 483, *574 LEXSEE
or below .08 more than tripled, as seen in Table 6.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n246. That extremely noncompact districts are not evident, in general, in the
1970s and 1980s does not, of course, mean they were not prevalent in earlier
periods. Southern Redeemers used gerrymanders, involving extremely noncompact
election districts, as a central technique to reestablish political control
after the national retreat from Reconstruction began in 1877. Thus, in
Mississippi, Redeemers in 1877 concentrated "the bulk of the black population in
a "shoestring' Congressional district running the length of the Mississippi
River, leaving five others with white majorities. Alabama parceled out portions
of its black belt into six separate districts to dilute the black vote." Eric
Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, at 590
(1988). In South Carolina, Democrats constructed the "bizarre" South Carolina
Seventh District in 1885, which "contained the homes of two Republican
incumbents and sliced across county lines in order to pack in every possible
black voter." Kousser, The Voting Rights Act, supra note 21, at 144. After these
gerrymanders, the Seventh District in South Carolina was 81.7% black and the
Sixth District in Mississippi was 77.5% black. Id. at 148. (There are small
discrepancies between Foner's and Kousser's figures regarding the
postgerrymander populations in the Mississippi congressional districts.).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
State-by-state comparisons indicate that the number of states in which
average compactness declined is greater than the number in which average
compactness increased (by a margin of thirty-two to nine for perimeter scores).
However, the results in Table 6 also reveal that low compactness is particularly
prominent in a small number of states. The chronological comparison in those
states indicates the depth of the change the 1990s districting created. In
Florida, Louisiana, North Carolina, and Texas, only one district in the 1980s
was below the dispersion or perimeter cutoffs shown in Table 6. In these same
states in the 1990s, sixteen districts fall below the dispersion cutoff, and
twenty-seven fall below the perimeter cutoff.
Three factors best explain this dramatic decline. First, since Karcher v.
Daggett, n247 congressional districts must have virtually identical populations.
n248 In pursuit of the mathematic exactitude the Court has demanded,
jurisdictions necessarily have had to compromise other values, like compactness.
This is a trade-off legal doctrine itself has imposed on political bodies.
Second, the increasing sophistication of redistricting technology enables
constant manipulation and recalibration of district boundaries to achieve that
equalization, or other goals. The new computer programs facilitate twists and
turns in perimeters that add or subtract small numbers of people until some
desired level of equality is achieved - or until more partisan and personal
agendas are realized. Third, the interpretation of the VRA in Thornburg v.
Gingles n249 has played a major role. Gingles had the eff [*575] ect of
requiring jurisdictions to put greater emphasis on fair and effective
representation of minority interests. Because the emphasis on interest
representation often conflicts with the traditional role of geography in
constructing districts - particularly when minority populations are dispersed -
Gingles has led to further deviations from compactness. These explanations are
consistent with the greater decline in perimeter measures compared to dispersion
measures and with the strong correlation between states with large minority
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92 Mich. L. Rev. 483, *575 LEXSEE
populations and those whose perimeter scores declined in the 1990s. n250
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n247. 462 U.S. 725 (1983).
n248. In 1983, the Court upheld the invalidation of a New Jersey districting
plan in which the maximum deviation from exact equality was 0.6984%. The Court
based its holding on the existence of a plan with a smaller deviation and the
fact that the state had not justified its adoption of a less accurate plan.
Karcher, 462 U.S. at 725.
n249. 478 U.S. 30 (1986).
n250. Of the states with combined black and Hispanic populations above 20%,
between 10% and 20%, and less than 10%, 13 of 15 (87%), 7 of 9 (78%), and 12 of
19 (63%), respectively, saw a decline in their perimeter scores.
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Whether rightly or wrongly decided, Shaw therefore cannot be seen as the
Court's sudden awakening to a phenomenon of long-standing existence. Contorted
appearances are not a new invention, but shifts in legal doctrine and
technological developments have combined to produce generally less compact
congressional districts and a number of extremely noncompact individual
districts. In this sense, Shaw should be seen as an outgrowth of the changes
occurring in the 1980s, including those the Court itself set into motion through
changes in legal doctrine.
V. Thresholds Versus Justifications: The Legal Role of Compactness
District "appearance" is a threshold, not an ultimate, issue under Shaw. It
is important to be clear about the precise way in which Shaw makes compactness
relevant. "Bizarre" districts that appear to be drawn for racial reasons are not
per se unconstitutional. Instead, jurisdictions must offer specific, legitimate,
and compelling purposes that account for the location and design of these
districts. Under Shaw, noncompactness functions as a trigger for strict
scrutiny; once a district crosses a threshold of noncompactness, special burdens
of justification apply. Nonetheless, even extremely noncompact districts can
survive strict scrutiny if sufficiently justified.
The process of justification involves two steps. First, the odd shape of a
district must result from a state's pursuit of aims that are legitimate and
constitutionally compelling. Second, the means the state chooses must be
narrowly tailored to achieving those legitimate aims and no others. The issue of
justification, therefore, is as crucial as that of appearance. Shaw, however,
touches on that issue only briefly. In this last section, we can sketch a few
considerations relevant to the justification inquiry. [*576]
Potentially acceptable justifications can be divided into three types: those
that are obviously legitimate; those that pose more difficult questions; and
those that trace directly to the VRA. With respect to each, we both describe the
general form of justification and suggest some of the difficulties courts will
face in applying it. We then turn to the more pervasive and general problem
posed by Shaw's demand that intensely political and partisan districting
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92 Mich. L. Rev. 483, *576 LEXSEE
decisions be justified in terms of rational, articulable principles. This
conflict between the political and the legal poses daunting obstacles to
judicial application of Shaw.
A. Justifications: Ends
1. Conventionally Sufficient Ends
Certain traditional districting ends are, in theory, precisely the kind that
will provide sufficient justification under Shaw for even "highly irregular"
districts. They include respecting existing political boundary lines when they
are oddly shaped, following natural geographic features of a landscape, and
preserving "communities of interest." At the least, when a court finds these
ends to be the dominant purpose behind a district's design, Shaw ought to be
satisfied. n251 For mixed-motive cases, however, in which these purposes are
present alongside race-conscious districting aims, Shaw provides no direct
guidance. With respect to "highly irregular" minority districts, these cases are
likely to be common. Whether in such situations the enhancement of minority
representation must be a motivating factor, the dominant motivating factor, or
the exclusive motivating factor remains an open question.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n251. See, e.g., Shaw v. Reno, 113 S. Ct. 2816 (1993) ("When members of a
racial group live together in one community, a reapportionment plan that
concentrates members of the group in one district and excludes them from others
may reflect wholly legitimate purposes. The district lines may be drawn, for
example, to provide for compact districts of contiguous territory, or to
maintain the integrity of political subdivisions."); Reynolds v. Sims, 377 U.S.
533, 578 (1964).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Even after courts determine the appropriate causation standard, the
evidentiary and administrative difficulties they will face in seeking to
untangle mixed motives will remain formidable. The underlying purposes and
principles that animate Shaw should govern the choice of standard. If we are
right that Shaw fundamentally concerns social perceptions that race has
subordinated all other traditionally relevant values in redistricting - but that
race-conscious districting is not per se a constitutional problem - the proper
causation standard in mixed-motive contexts ought to track this concern. This
interpretation might suggest that the enhancement of minority representation
must be more than merely a motivating factor behind a "highly irregular"
district; it [*577] must be either the exclusive explanation for that
district or, at the least, the dominant purpose behind it. Deciding on which
standard is most consistent with Shaw, however, requires a more detailed
analysis of the likely effects of these different scenarios on social
perceptions.
Apart from the problem of mixed motives, these theoretically sufficient
justifications will pose additional conceptual difficulties in practice. With
respect to "community of interest" justifications, reapportionment bodies often
give some weight to defining districts in terms of attributed common
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92 Mich. L. Rev. 483, *577 LEXSEE
interests. The list of potential interests, all reflected in actual districting
plans, includes urban interests, rural interests, coastal interests,
agricultural interests, mountain interests, beachfront property ownership,
ethnic interests, and many more. The intersection between race-conscious
districting and the acknowledged legitimacy of preserving communities of
interest generates at least three interrelated questions that courts applying
Shaw must confront.
First, what kinds of interests can policymakers legitimately treat as the
basis for attributing a community identity to some group? This question is
normative, not descriptive. The issue is which of the many dimensions that might
describe some group's common interest may be acted on by legislators. If living
on the coast defines a legitimately distinct political interest, does being
wealthy? If so, does being poor?
Once inroads into territorial districting can be made in the name of
preserving communities of interest, the second question is whether policymakers
can treat race itself as constituting such an interest. The argument for doing
so is particularly strong when two of the predicates to a section 2 claim under
Gingles are present: that is, when majorities engage in racial-bloc voting
against minority interests that are themselves politically cohesive. Under these
circumstances, there might be strong reasons for permitting, if not requiring,
policymakers to define communities of interest in racial terms. If urban
residents or rural residents can be assumed to have cohesive political
interests, perhaps racial groups can as well n252 - particularly when this
cohesiveness is not assumed, but demonstrated in fact.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n252. These assumptions are always subject to constitutional and VRA
constraints, of course, that prohibit minority-vote dilution.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
With respect to "bizarrely" shaped race-conscious districts, however, Shaw
seems to reject this kind of justification. If a "bizarre" district that appears
to be a racial gerrymander cannot stand absent sufficient justification, the
fact that the district was designed to be a racial gerrymander cannot provide
that justification. This different [*578] treatment of race and other
interests may be a basis for criticizing Shaw, but it is the sine qua non of the
decision.
Third, as the Court has recognized in other contexts, race frequently
correlates with other socioeconomic factors. n253 In evaluating oddly shaped
districts, this correlation will require courts to attempt to untangle
legitimate communities of interest from the now-illegitimate one of race. If
blacks as blacks cannot be grouped into a "highly irregular" district, but urban
residents or the poor can, how will courts distinguish these contexts, and under
what mixed-motive standard?
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n253. See, e.g., Washington v. Davis, 426 U.S. 229, 248 n.14 (1976).
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92 Mich. L. Rev. 483, *578 LEXSEE
-
In short, even the justifications most readily acceptable in theory -
acknowledgement of existing political boundary lines, recognition of natural
geographic features, preservation of communities of interest - will pose
considerable difficulty in application.
2. More Complex Ends
Redistricting necessarily distributes political power between parties and
specific politicians, particularly incumbent officeholders. In general, the
Supreme Court has embraced political realism and, at least to some extent,
tolerated these facts as inevitable or even desirable. As Justice White, perhaps
the leading judicial realist in this area, wrote for the Court in Gaffney v.
Cummings: n254 "Politics and political considerations are inseparable from
districting and apportionment.... It requires no special genius to recognize the
political consequences of drawing a district line along one street rather than
another.... The reality is that districting inevitably has and is intended to
have substantial political consequences." n255 After Shaw, the extent to which
partisan objectives and protection of incumbent officeholders will be permitted
to justify "highly irregular" race-conscious districts, if at all, becomes a
critical question.
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n254. 412 U.S. 735 (1973).
n255. 412 U.S. at 753; see also White v. Weiser, 412 U.S. 783, 795-96 (1973)
("Districting inevitably has sharp political impact and inevitably political
decisions must be made by those charged with the task.").
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Currently, the Justice Department is taking the litigation position that
these ends - partisan advantage or incumbent protection - do suffice to justify
districts that Shaw requires to pass strict scrutiny. Thus, in post-Shaw
litigation challenging certain black-dominated congressional districts in
Louisiana, the Justice Department has filed a brief arguing that "where a
compact majority-minority district could be drawn, but the state chooses to draw
the district in a different, less [*579] compact way to protect an incumbent
or to give partisan advantage to one political party, the state will be able to
explain the odd shape of the district on considerations other than race." n256
As a descriptive or analytic statement, this assertion is certainly accurate, as
we argued earlier, n257 but whether these explanations will satisfy Shaw is more
uncertain.
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n256. Supplemental Brief for the United States as Amicus Curiae at 14, Hays
v. Louisiana (W.D. La. filed Aug. 9, 1993) (No. 92-1522S).
n257. See supra text accompanying notes 90-96.
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92 Mich. L. Rev. 483, *579 LEXSEE
-
The pattern of judicial response to these motivations in other redistricting
contexts forms an intricate mosaic. With respect to protecting incumbents,
federal courts accept this as legitimate state policy in some contexts;
moreover, federal courts are actually required to defer to state aims of this
sort in some circumstances when those courts are called upon to redistrict. For
example, in interpreting the cause of action Davis v. Bandemer n258 creates,
which makes extreme partisan gerrymandering unconstitutional, courts
increasingly focus on whether the plan treats incumbents of both parties
"fairly." If a plan pairs too many incumbents from the same party against each
other in a new district, this becomes significant evidence of impermissibly
partisan redistricting. n259 In effect, this approach not only tolerates state
efforts to protect incumbents, but comes dangerously close to ensuring fair
districting by making public office a personal sinecure. n260 Federal courts
have labeled protecting incumbents an "important state goal" n261 and a
"legitimate" justification when special justifications for district design are
required. n262 Similarly, the Supreme Court has held that, when federal courts
are forced to choose among state redistricting plans, those courts must respect
state policy preferences for pre [*580] serving "the constituencies of
congressional incumbents." n263
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n258. 478 U.S. 109 (1986).
n259. For example, after the Wisconsin legislature failed to reapportion
itself following the 1990 Census, the court adopted its own plan and construed
Bandemer to require that the smallest number of incumbents be paired. The
critical feature of the plan chosen was that it "paired only 16 incumbents in
both houses of the legislature, and only 6 of the same party." Prosser v.
Elections Bd., 793 F. Supp. 859, 871 (W.D. Wis. 1992).
The Supreme Court has acknowledged the legitimacy of state efforts to
protect incumbents on several occasions. See, e.g., Karcher v. Daggett, 462 U.S.
725, 740-41 (1983); Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966) (minimizing
competition between incumbents does not necessarily establish invidiousness).
n260. For a critique of the courts' protection of incumbents as a way of
ensuring against extreme partisan gerrymandering, see Samuel Issacharoff,
Judging Politics: The Elusive Quest for Judicial Review of Political Fairness,
71 Texas L. Rev. 1643, 1672 (1993) ("Courts have repeatedly invoked Bandemer for
the proposition that it is impermissible to place incumbents in head-to-head
contests with each other in redrawn districts.").
n261. Burton v. Sheheen, 793 F. Supp. 1329, 1342 (D.S.C. 1992) (describing
the avoidance of incumbent contests as "an important state goal").
n262. Gonzalez v. Monterey County, 808 F. Supp. 727, 735 (N.D. Cal. 1992).
n263. White v. Weiser, 412 U.S. 783, 797 (1973). Note, though, that the Court
explicitly reserved the different question of whether a state can justify a
deviation from population equality among districts that is a prima facie
violation of equal protection on the ground that it is necessary to protect
incumbents. 412 U.S. at 791-92. Justice Marshall rejected the Court's
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willingness to defer to state desires to protect incumbents, even when the
question arises only in the context of federal courts' choosing between
reapportionment plans after a constitutional violation has been established. 412
U.S. at 799 (Marshall, J., concurring in part).
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Yet, in other redistricting contexts, federal courts have refused to
acknowledge state interests in protecting incumbents. For example, when
jurisdictions fail in repeated efforts to draw legally valid redistricting
plans, federal courts assume that role. In these circumstances, some courts
explicitly refuse to permit partisan or incumbency concerns to influence
redistricting policy. n264 In the recent court-mandated reapportionment of the
Minnesota legislature, the court evaluated the plan in terms of independent,
nonpartisan fairness criteria, explicitly assuming a veil of ignorance
concerning effects on incumbents. n265 In other cases, court-appointed expert
witnesses have specifically requested that they not be provided with data
concerning partisan or incumbent effects of various plans. n266 Arguably, an
affirmative judicial role in redistricting might implicate different concerns
than a more passive review of policymakers' reapportionment plans, but these
cases reflect some judicial discomfort with legitimating too strongly state
efforts to protect existing officeholders.
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n264. See, e.g., Prosser v. Elections Bd., 793 F. Supp. 859, 867 (W.D. Wis.
1992) (three-judge court; per curiam) ("Judges should not select a plan that
seeks partisan advantage - that seeks to change the ground rules so that one
party can do better than it would do under a plan drawn up by persons having no
political agenda - even if they would not be entitled to invalidate an enacted
plan that did so."); Terrazas v. Slagle, 789 F. Supp. 828, 844 (W.D. Tex. 1991)
("Ensuring free and equal access to the ballot, not partisan considerations or
the protection of incumbents, is the sole focus of federal law in the area of
redistricting and reapportioning seats to legislative bodies."), affd., 112 S.
Ct. 3019 (1992) (mem.).
n265. "The plan developed by the court was developed without regard to the
residence of incumbents. Adherence to principles of compactness and population
equality, and respect for governmental boundaries insures that partisan
gerrymandering is reduced or eliminated." Emison v. Growe, 782 F. Supp. 427,
445-46 (D. Minn. 1992) (footnote omitted), revd., 113 S. Ct. 1075 (1993).
n266. See, e.g., Issacharoff, supra note 260, at 1694.
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As for the legitimacy of partisan political aims, the argument that they
justify "bizarre" race-conscious districts can be pressed in two forms. In the
most compelling form, states might argue that oddly shaped districts are
necessary to create a legislature that fairly reflects the distribution of
partisan power in a state. In the least attractive but often more realistic
form, states might argue that the political forces in control of redistricting
ought to be permitted to exploit their advantage as far as possible. The
argument would continue that, as long as this pursuit of political advantage is
not carried to the unconstitutional [*581] extremes that Bandemer
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condemns, state political forces should be permitted to battle for control, even
through the means of contorted, race-conscious districts. The Court has
acknowledged the inevitable role of political aims in redistricting and has held
that the pursuit of "political fairness," in the form of districts designed to
bring about proportional representation of Democrats and Republicans in the
state legislature, is not unconstitutional. n267 Beyond that context, however,
the Court has not suggested how much weight partisan aims will be given under
the Fourteenth Amendment.
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n267. See supra notes 254-55 and accompanying text.
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This wavering and uncertain pattern of decisions suggests a limit on the
willingness of courts to accept state partisan and incumbency-protection
interests as compelling ones. Shaw offers no direct guidance on the question,
but it seems unlikely that courts will view these interests as sufficient to
justify "highly irregular" race-conscious districts. Both the tenor of Shaw and
its formal legal requirement of strict scrutiny suggest the Court believes it
has identified a value of profound constitutional importance that certain oddly
shaped districts threaten. Although a state's partisan agenda might be a
legitimate aim that courts will defer to in some contexts, it will be awkward
for courts to declare it compelling enough to override the constitutional values
Shaw identifies.
In addition, Shaw itself suggests that partisan motivations are a further
reason to condemn, rather than to salvage, "bizarre" race-conscious districts.
No veil obscured the possible role of incumbency protection behind the creation
of District 12; the dissents raised it several times as a reason justifying the
district, n268 while amicus curiae squarely presented it as a reason to find
North Carolina's plan unconstitutional. n269 With partisan "defenses" so
obviously available, Shaw would be a strange exercise in formality if the Court
believes that, on remand, these defenses should be sufficient to justify
contorted districts. Moreover, if Shaw rests on concern for social perceptions
involving the role of race in politics, this concern suggests invalidating
"highly irregular" districts when these perceptions are likely. Shaw resists
permitting politicians to manipulate these social perceptions in pursuit of
their own self-interest and partisan advantage. For these reasons, we consider
it unlikely courts will find protection of incum [*582] bents or pursuit of
partisan gain to be a sufficiently compelling justification for "highly
irregular" race-conscious districts.
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n268. Shaw v. Reno, 113 S. Ct. 2816, 2841 (1993) (White, J., dissenting),
113 S. Ct. at 2843 (Stevens, J., dissenting).
n269. See, e.g., Brief Amicus Curiae of the Republican National Committee in
Support of Appellants at 12-13, 19-21, 25, Shaw.
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92 Mich. L. Rev. 483, *582 LEXSEE
3. VRA Compliance as an End
Race-conscious districting most often occurs in the context of efforts to
comply with the VRA's ban on minority-vote dilution. n270 But compliance with
the VRA is not a unitary phenomenon. Claims of compliance can arise in purely
remedial contexts, they can arise when jurisdictions claim to be preventing
future violations, or they can arise when jurisdictions affirmatively use race
to comply with the general aim of enhancing minority representation.
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n270. Many years ago, John Ely observed that legal standards treating ex post
racially disparate impact as racial discrimination would necessarily require
policymakers ex ante to engage in race-conscious policymaking. He noted:
So long as the Court remains unwilling to order states to take race into account
... judicial review must await proof of racial motivation and cannot be
triggered by disproportion per se. To undertake automatically to invalidate
state actions because of racial disproportion would obviously be to order that
balance be intentionally achieved.
John H. Ely, Legislative and Administrative Motivation in Constitutional Law, 79
Yale L.J. 1205, 1260 (1970). Because the VRA prohibits electoral arrangements
that discriminate in intent as well as result, policymakers must be aware of -
rather than indifferent to - the racial distribution of political power that
different electoral structures will produce.
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As in other areas involving race and the Constitution, the purely remedial
context is the easiest one. When a minority district is required for a
jurisdiction to comply with either section 2 or 5, that mandate should provide
sufficient justification under Shaw. n271 With respect to district shapes, the
difficult question will not be whether required compliance satisfies strict
scrutiny, but what kinds of districts the VRA will be interpreted to require. We
have described the conflicting ways in which federal courts have approached that
statutory question. n272 Shaw directly bears on this question only when an
interpretation of the VRA would be unconstitutional - that is, when the district
it requires would be unconstitutionally contorted. But, Shaw will cast a larger
shadow, for it will likely change the background assumptions courts bring to
interpreting the Act. Courts might become more likely to find that the Act does
not require extremely noncompact districts, particularly at the stage of
determining substantive liability under the Act. n273 The difficult question
will not be the formal [*583] one of whether VRA compliance is sufficiently
compelling, but how broadly the courts will construe this compliance. We examine
this question shortly.
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n271. See, e.g., Shaw, 113 S. Ct. at 2830 ("The States certainly have a very
strong interest in complying with federal antidiscrimination laws that are
constitutionally valid as interpreted and as applied."). There is some
circularity, inevitably, to this analysis. If only "highly irregular" districts
trigger strict scrutiny, then only those districts require special
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justification. But as a statutory matter, courts are unlikely to interpret the
Act to require highly irregular districts after Shaw.
n272. See supra text accompanying notes 160-76.
n273. Even if courts become more strict in the way they interpret the first
prong of Gingles, thus finding no liability when no reasonably compact minority
district can be created, they might still permit "highly irregular" districts as
a remedy after liability has otherwise been found. Thus, once 2 requires a
jurisdiction to create a minority district, the jurisdiction might prefer an
irregular to a compact district. In this context, however, the jurisdiction
could not defend itself on the ground that the VRA required the irregular
district. The legal question would then be whether the creation of this
irregular district was "narrowly tailored" to remedy the violation, a question
we address infra at text accompanying notes 278-80.
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Apart from the pure remedial context, jurisdictions might use race to
forestall potential VRA violations. With respect to oddly shaped minority
districts, the crucial question is whether Shaw will lead to Croson-like
constraints on racial redistricting. n274 Must jurisdictions first establish a
factual predicate for the position that race-conscious districting is a
necessary preventative? What evidence would be required and what level of proof
must be met? For example, must jurisdictions engage in the costly and complex
process of establishing racially polarized voting patterns, a task plaintiffs
must undertake to establish a section 2 violation? Because we are focused here
on "highly irregular" districts, it is unlikely jurisdictions will be able to
establish that such districts are necessary to avoid substantive VRA liability.
n275
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n274. We focus here only on oddly shaped districts, rather than
race-conscious districts in general, because of our view that Shaw applies only
to the former. See supra text accompanying notes 57-74.
n275. If the Justice Department denied 5 preclearance on the ground that the
failure to create a particular, "highly irregular" district would amount to a
potential 2 violation, a jurisdiction that complied by drawing such a district
would likely have sufficient justification. Of course, an aggressive
interpretation of Croson could further require that the Justice Department's
conclusion of potential 2 liability itself rest on a sufficient factual
foundation, such as proof of racially polarized voting in the relevant area.
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Finally, jurisdictions might seek to justify oddly shaped minority districts
not in remedial terms, but prospectively. If forced to put this in terms of
compliance with the VRA, jurisdictions might argue that such districting is
consistent with the general purposes and spirit of the Act, even if not
technically required. Jurisdictions might assert, for example, that these
districts are a means of enhancing the legitimacy, fairness, and responsiveness
of democratic institutions. Under Voinovich v. Quilter, n276 nothing in the VRA
prohibits race-conscious districting justified in these terms. But, whatever
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the constitutional status of such justifications for race-conscious districts
that are reasonably compact, Shaw seemingly requires that these justifications
be found insufficient for "highly irregular" districts. Shaw requires strict
scrutiny for irregular districts, and, again, it is difficult to see the point
[*584] in that requirement if jurisdictions can successfully defend with
theargument that they were seeking to enhance minority representation. n277
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n276. 113 S. Ct. 1149 (1993).
n277. As we argued earlier, see supra text accompanying notes 126-32, Shaw
can be read broadly and narrowly; if Shaw applies only when a more compact
minority district could have been created, then the inability to do so would
provide a sufficient defense under strict scrutiny.
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B. Means: The Requirement of Narrow Tailoring
In addition to sufficiently compelling ends, Shaw requires "narrowly
tailored" means that advance those ends with precision. n278 This will be a
complex undertaking, again raising, among other difficulties, the problems of
mixed motives.
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n278. Shaw v. Reno, 113 S. Ct. 2816, 2819 (1993). This statement is made in
the specific context of remedying violations under 5's nonretrogression
standard. 113 S. Ct. at 2819. The Court does not make a similarly explicit
statement regarding narrow tailoring with respect to 2. Nonetheless, nothing the
Court says about 5 would appear to distinguish it from 2 in this respect.
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Consider VRA compliance. When the Justice Department under section 5 or the
courts under section 2 find that a jurisdiction is required to create an
additional minority district, neither typically specifies precisely where that
district must be located and how it must be designed. This policy of
self-abnegation rests both on the recognition that districting implicates
multiple, diverse values, and on policy reasons for deferring to state
recommendations of those values. As long as the jurisdiction gets to the
required end state and creates the additional district, federal concerns are
satisfied.
In this context, the meaning of "narrowly tailored" is obscure. Absent
direct specification from either the courts or the Justice Department as to how
a district is to be designed, no obvious baseline exists against which to
measure "narrowly tailored."
One solution is to construe this language to suggest that the minority
districts the VRA requires must be drawn in the most compact way possible. Yet
this would confuse the purpose of Shaw's strict scrutiny standard and require
jurisdictions, for no obvious purpose, to compromise significant redistricting
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92 Mich. L. Rev. 483, *584 LEXSEE
values. The purpose of demanding close connections between means and ends is to
ensure that the state is not covertly pursuing forbidden ends. But compactness
is not constitutionally required; n279 Shaw does not forbid noncompact districts
per se. Instead, the suspect districts are those so noncompact as to create the
social perception that the single value of race-conscious districting has
subordinated all other districting values.
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n279. Shaw, 113 S. Ct. at 2827 (citing Gaffney v. Cummings, 412 U.S. 735, 752
n.18 (1973)).
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As a result, "narrowly tailored" in this context should mean no [*585]
more than avoiding "highly irregular" district shapes. This view may make the
means test appear redundant, given that Shaw requires strict scrutiny for
precisely such districts. Interpreted this way, however, the narrow tailoring
requirement would still be an element in Shaw's logic because it would clarify
that vague assertions of compliance with the VRA will not suffice. At the same
time, as long as jurisdictions are complying with their VRA obligations, while
still accommodating traditional redistricting goals, Shaw implies that they will
retain policymaking discretion to make trade-offs among these goals. Shaw
requires that jurisdictions respect value pluralism and avoid value
reductionism. The requirement of "narrow tailoring" should be construed with
this principle in mind.
C. Justifications: The General Problem
Easily lost in this technical legal analysis is the essential nature of the
districting process. Districting implicates an array of values, some relatively
neutral, some intensely partisan. For the most part, one cannot rank these
values in any lexical order; no decision rule specifies the precise trade-offs
to be made among these values when they conflict. n280 Moreover, the design of
even a single district reflects not one decision, but the cumulation of hundreds
of small decisions - whether to include this or that section of adjacent towns,
whether to extend the district to the north or to the west, even whether to
include this or that street. In addition, district plans draw from a virtually
unlimited range of potential alternatives. There is no ideal districting plan
that forms a baseline against which to measure individual districts or a
district plan.
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n280. It is generally recognized that equal population and avoidance of
minority-vote dilution are goals that must be achieved. Beyond that, there is
widespread disagreement on the priority ranking of other goals.
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Shaw attempts to pull one thread out of this tapestry; it demands specific,
articulable justifications in one particular districting situation. It is not
clear, however, whether this aim can be achieved without unraveling the fabric
of the districting process. Districting plans are integrated bundles of
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92 Mich. L. Rev. 483, *585 LEXSEE
compromises, deals, and principles. To ask about the reason behind the design of
any one particular district is typically to implicate the entire pattern of
purposes and trade-offs behind a districting plan as a whole. n281 Searching for
"the reason" or [*586] "the dominant reason" behind a particular district's
shape is often like asking why one year's federal budget is at one level rather
than another. Moreover, to require a coherent explanation for the specific shape
of even one district is to impose a model of legalistic decisionmaking on the
one political process that least resembles that model.
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n281. See, e.g., Robert G. Dixon, Jr., Fair Criteria and Procedures for
Establishing Legislative Districts, 9 Poly. Stud. J. 839, 844 (1981) (noting
that districting is not an exercise in logic but in compromise and
accommodation); Issacharoff, supra note 260, at 1650 (noting that states are
hard pressed to articulate coherent policies for districting plans "in light of
the political horsetrading and compromises that typically - and perhaps
inevitably - underlie such plans"). The difficulties here are analogous to those
that underlie the judicial resistance to engage in substantive rationality
review of economic legislation; just as individual economic regulations are tied
to each other through an ongoing process of compromise and logrolling,
individual district lines cannot be rationalized apart from the compromises and
trade-offs they embody. See generally Frank Michelman, Politics and Values or
What's Really Wrong with Rationality Review, 13 Creighton L. Rev. 487 (1977)
(analyzing rationality review of economic regulation).
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These general pressures may lead Shaw in another direction. Rather than
providing a doctrine for recovering the reasons behind an irregular district,
Shaw might eventually become an external constraint on the districting process.
That is, Shaw might come to define an outer constraint on extreme
noncompactness. As long as redistricting bodies stay within that constraint,
however, they will retain the discretion to make arbitrary, politically laden
policy trade-offs between competing districting values. In this way, Shaw would
not demand ex post what does not take place ex ante: reasoned articulation of
specific purposes for drawing district boundaries in particular ways.
Rather than seeking the reasons an irregular district was drawn, courts
might implement Shaw as a constraint on the extent to which districts can become
extremely noncompact. With a clearly announced constraint on extreme
noncompactness, political bodies will understand the domains in which they
cannot act and those within which they retain policymaking discretion. As long
as policymakers stay within this specified constraint, courts will not have to
inquire into the reasons behind district designs. Many of the issues discussed
above can then be bypassed. When policymakers continue to believe they have
sufficient reasons for violating this constraint, courts will still have to
evaluate those justifications. Yet such contexts are likely to be rare once a
clear constraint is specified.
Conclusion
In some respects, Shaw might function as the Baker v. Carr n282 of the
Voting Rights Act era. In Shaw, the Court found justiciable an entirely new
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92 Mich. L. Rev. 483, *586 LEXSEE
kind of equal protection claim that constrains the design of election districts.
Like Baker, the decision will be controversial, in part because it is bereft of
virtually any guidance as to how the elusive principles that underlie its
holding are to be turned into an administrable set of standards. In an area as
explosive as race and redistrict [*587] ing, the political, legal, and social
costs of this uncertainty are potentially vast.
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n282. 369 U.S. 186 (1962).
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We have argued that Shaw ultimately must be understood in terms of judicial
concern for "expressive harms." American conceptions of political representation
are riven right now by competing ideals. Traditionally, the fundamental template
has been that of the territorially based single-member districting system, in
which geographically defined interests are the foundation on which political
representation is built. Working within this mold, the VRA stresses instead
direct representation of group interests, seeking to ensure the fair and
effective representation of minority groups. In Shaw, the Court effectively held
that the tension between these alternative visions had reached the breaking
point. When jurisdictions create "bizarre" territorial districts, in
single-minded pursuit of enhancing minority representation, they compromise the
perceived legitimacy of political institutions. The harm is a generalized one,
for it lies not in specific burdens on particular individuals, but in
government's expression of disrespect for significant public values. Right or
wrong, this is the theory on which Shaw is decided.
Expressive harms are notoriously difficult to translate into legal rules. We
have argued that quantitative measures of compactness provide the most secure
starting points for defining "bizarre" districts in principled and administrable
terms. Using these measures, we have shown that North Carolina District 12 can
legitimately be considered the least compact congressional district in the
country. At the same time, other districts - majority and minority - are not far
behind. The precise effect of Shaw will depend on how "irregular" a district
must be to trigger strict scrutiny, but quantitative measures of compactness
promise the most useful guidance for making that choice. Baker became meaningful
once Reynolds v. Sims n283 translated it into the one-person-one-vote standard.
If Shaw is to have its Reynolds, it will be through the quantitative measures of
compactness we offer here.
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n283. 377 U.S. 533 (1964); see also Wesberry v. Sanders, 376 U.S. 1 (1964)
(requiring one person, one vote for congressional districts). Professors
Aleinikoff and Issacharoff make a similar observation. See Aleinikoff &
Issacharoff, supra note 59, at 622 ("Shaw would then be the Baker of compactness
standards, with its own Reynolds presumably to follow.").
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www.burtonsys.com/pildes.htm (This article)
www.burtonsys.com/redist9b.htm (How to Abolish the Gerrymander: An Algorithmic Approach, by David Burton)
www.idurham.com/ubb/Forum43/HTML/000005.html (For Real Reform, Take Redistricting Process Out of Politics, by Sen. Ham Horton)
www.ncga.state.nc.us/Redistricting/ (NC General Assembly - Redistricting page)
www.senate.leg.state.mn.us/departments/scr/redist/red2000/biblio.htm (Redistricting in the United States - Bibliography & Links)
www.census.gov/clo/www/redistricting.html (Census 2000 Redistricting Data Program)