In a democratic society, the purpose of voting is to allow the electors to select their governors. Once a decade, however, that process is inverted, and the governors and their political agents are permitted to select their electors. Through the process of redistricting, incumbent office holders and their political agents choose what configuration of voters best suits their political agenda. The decennial redistricting battles reveal the bloodsport of politics, shorn of the claims of ideology, social purpose, or broad policy goals. Redistricting is politics pure, fraught with the capacity for self-dealing and cynical manipulation. That different configurations of electors will yield different electoral results is hardly new or noteworthy. The pejorative term gerrymander draws from the creative line drawing of Massachusetts Governor Elbridge Gerry in 1812,(1) and from the founding strokes of the American republic.(2) What is still relatively new is the attempt to constrain, under the aegis of the Constitution, the most wanton excesses of the process. It was only thirty years ago that the Supreme Court forced the rural legislators in Tennessee(3) and Alabama(4) to redistrict district their states to reflect the growth of the urban population centers, thereby undermining their stranglehold on state political power.
The commands of the one-person-one-vote rule of redistricting are by now so ingrained as to obscure what else is new in the 1990s round of redistricting. For the first time since the great reapportionment decisions of the Supreme Court in the 1960s, redistricting authorities have had to contend not only with equipopulational districting, but also with vigilant protections for minority representation. The passage of the 1982 amendments to the Voting Rights Act(5) and the Supreme Court's expansive endorsement of the amended Act in the 1986 North Carolina redistricting case, Thornburg v. Gingles,(6) have placed the issue of minority-controlled districts front and center in the decennial battle over representation. In state after state, the question of minority districts became the most visible and debated issue after the 1990 Census,(7) oftentimes creating an uncomfortable alliance of minority incumbents, aspirants for political office, and the Republican Party, the latter armed with the oversight powers of the Justice Department.(8)
Despite the centrality of minority representation to post-1990 redistricting, the process took place in the absence of well-developed governing standards of law, particularly with regard to the application of the Voting Rights Act. The leading cases under section 2 of the Voting Rights Act(9) -- the prohibition against the diminution of minority-voting influence -- were forged in the battles against at-large or multimember electoral districts. These electoral systems permit all members of a community or electoral jurisdiction to vote separately on each candidate for office, thereby allowing a voting majority to control every seat in an election. For example, if a community is sixty percent white and forty percent black, and if the two racial groups have consistently different voting preferences, the result of an at-large election for a city council in which black and white candidates vie for each of five council
positions would be that the white candidate would likely prevail in each contest, with about sixty percent of the vote. In such cases, the perceived harm is the capacity of a majority community to capture a disproportionate share of representation through its ability to vote serially for each candidate for local office. The remedy of first recourse is to create electoral subdistricts in which minority electoral cohesion would bear fruit.
Unfortunately, the post-1982 vote dilution caselaw gave little guidance on how to arrange single-member electoral districts within districted systems in which all jurisdictional lines were presumptively up for grabs.(10) Nor did the cases prior to 1990 articulate the conditions under which state redistricting entities were either permitted or required to resort to race-conscious practices. These issues were presented to the Supreme Court after the 1990 round of redistricting, in cases arising from the redistricting battles in Minnesota, Ohio, Florida, and, most notably, North Carolina -- the setting for the landmark case of Shaw v. Reno.(11) Whereas prior cases had addressed the remedial use of race-conscious districting to alleviate proven exclusion, the 1990s redistricting cases concerned the affirmative use of race in the quintessentially political process of dividing electoral spoils.
North Carolina provided the Court with a combustible mix of race, politics, and undisguised self-dealing that was the perfect opportunity for considering these issues. The results of the 1990 Census entitled the state to an additional congressional seat, bringing its delegation to twelve. Although its population is twenty percent black, and despite the growing political power of blacks, there had been no black congressional representation from North Carolina this century. Nevertheless, the state initially apportioned itself in 1990 to create only one district likely to elect a black representative. The state presented the plan for approval to the Justice Department under the preclearance provisions of the Voting Rights Act.(12) The Justice Department objected to the state's refusal to create a second, heavily black district in the southeastern section of the state, which contained a significant concentration of black voters, and its decision instead to disperse black voters among a number of majority-white congressional districts. Following the Department's objection, the state went back to the drawing board with the avowed aim of increasing black representation.(13)
The creation of a black congressional district in the southeastern portion of the state would have disrupted the power base of incumbent Democratic congressmen.(14) Consequently, the legislature decided instead to create the now notorious I-85 district in the north-central region of the state. This district stretched 160 miles in length, and often it was barely wider than the highway that it followed. Indeed, contiguity was maintained at one spot only because two parts of the district intersected at a single point. The plan satisfied the Justice Department objection by dividing towns, counties, and even precincts among as many as three congressional districts in order to capture sufficient numbers of black voters to create a second majority-black district. The plan earned the sobriquet "political pornography" from the Wall Street Journal(15) before being dubbed the "snake" district and struck down as "political apartheid" by a sharply divided Supreme Court.(16)
Shaw is no doubt a major opinion that attempts to define limits on the use of racial or ethnic classifications in electoral redistricting. The main thrust of this article is to assess the critical question of whether Shaw renders unconstitutional the type of race-conscious realigmment of electoral configurations that have given meaning to the voting-rights reforms of the past two decades.(17) In making this assessment, we try to ascertain exactly how the Court has limited the use of race-conscious districting, and we try to determine whether there is any jurisprudential coherence to the Court's latest confrontation with the law and politics of race. Our conclusion is that Shaw is as important for what it does not say as for what it does: its inconclusive resolution of the ultimate issue whether race may ever be justifiably relied upon in redistricting reaffirms the messy jurisprudence of compromise that has guided the center of the Court since Regents of the University of California v. Bakke.(18) The heart of this jurisprudence is a never quite satisfactory accommodation between deeply individualistic notions of appropriate treatment and a politically charged conception of the representational legitimacy of principal institutions in our society.
THE FUTURE OF AN EVOLUTION: EQUAL PROTECTION AND VOTING RIGHTS
A. The Context of the Past
"Strict scrutiny" was the handmaiden of the law of the Second Reconstruction. Unwilling to invalidate every use of a racial classification,(19) the Court announced that race-dependent government decisions would demand extraordinary justification -- a burden few such decisions were expected to, or could, meet. The strategy made eminent sense in a world where virtually all racial lines since the demise of the First Reconstruction had been used to subordinate historically discriminated-against groups.(20) By the 1970s, however, it was clear that state and federal policymakers were prepared to adopt race-conscious measures to ameliorate the exclusion of African Americans and others from important economic and educational opportunities.
The ensuing debate in constitutional law on "affirmative action" centered, in large part, on the appropriate level of scrutiny to apply. Those Justices and scholars inclined to uphold such measures stressed that the use of race was "benign" and therefore importantly different from the immoral racial classifications of segregation. Accordingly, a lower level of justification for race conscious aiding previously discriminated-against groups was appropriate.(21) To others, the right not to be injured on the basis of one's skin color was a personal right secured by the Constitution, and the asserted lack of an invidious purpose could not be a sufficient reason for reducing the level of judicial scrutiny applied to measures that disadvantaged persons on the basis of race.(22)
Justice Powell's opinion in the Bakke case split the difference. He held affirmative action plans in higher education to strict scrutiny,(23) yet he was willing to find that it was possible for the state to meet the burden of a compelling and close-fitting justification for the...