Expressive harms, 'bizarre districts,' and voting rights: evaluating election-district appearances after Shaw v. Reno.

• Author: Pildes, Richard H.
• Position: Symposium: The Future of Voting Rights After Shaw v. Reno

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),(1) 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.

Shaw v. Reno(2) 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 the Fourteenth Amendment, the geography of election districts "is one area in which appearances do matter."(3) 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.

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 . . . ."(4) 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.(5)

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."(6) 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.

But judicial impulses are one thing, legal doctrine another. That most people, judges included, recoil instinctively from willfully misshapen 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.(7) Shaw translates this impulse into constitutional doctrine 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: "[H]ow [the Court] intends to manage this standard, I do not know."(8)

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 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 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.

1. 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.

   1. 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.(9) 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.(10) Four years later, in Thornburg v. Gingles,(11) the Court focused the standard for proving such results around three factors that conjoin social conditions and voting structures. First, the minority community(12) must be "sufficiently large and geographically compact" to constitute a minority-dominated election district.(13) Second, the minority community must be "politically cohesive"(14) -- that is, it must demonstrate common voting preferences for candidates.(15) Finally, the majority must be engaged in racially polarized voting behavior that over time "usually" defeats the preferred candidates of the minority community.(16) 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.(17) The remedy for such a violation requires the governmental unit to create an alternative voting structure that will enable fair and effective minority representation.

      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.(18) These electoral structures, then common throughout the country,(19) 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.(20) In many places, the specific aim of these reforms was to diminish the political influence of freed blacks.(21) In these Gingles-era challenges to multimember 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.

      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.(22) Indeed, not until this Term did the Supreme Court definitively hold that the Gingles criteria also control VRA challenges to single-member district plans.(23) 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...