The unwelcome judicial obligation to respect politics in racial gerrymandering remedies.

AuthorFisher, Jeffrey L.


Like it or not, the attack on "bizarrely" shaped majority-minority electoral districts is now firmly underway. Nearly four years have passed since the Supreme Court first announced in Shaw v. Reno(1) that a state's redistricting plan that is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting" may violate the Equal Protection Clause.(2) Such a district, the Court held, reinforces racial stereotypes, carries us further from the goal of a political system in which race no longer matters, 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."(3) The Court shows no signs of reconsidering this stance.(4)

Yet Shaw's constitutional harm is still often misunderstood. Shaw claims are not reverse discrimination claims. In fact, the Shaw Court took pains to emphasize that the harm caused by racially gerrymandered(5) districts was "analytically distinct" from the previously recognized harms of vote dilution and malapportioned districts.(6) Even when a Shaw violation occurs, each citizen's vote is still worth the same amount as every other citizen's; white voters do not suffer because the district unfairly prevents them from electing the representative of their choice. In other words, plaintiffs in Shaw claims do not suffer any cognizable harm tied to election results, but rather feel only the "expressive" injury of being subjected to a racial classification in and of itself.(7)

Nonetheless, Shaw-type lawsuits have proliferated. Since the Shaw decision, courts in several states have subjected to strict scrutiny(8) congressional districts in which race constituted the "dominant and controlling" consideration(9) and largely have struck them down.(10) During the past two years, the Supreme Court has struck down majority-minority districts in Georgia,(11) North Carolina,(12) and Texas;(13) lower courts also have struck down such districts in Louisiana,(14) New York,(15) Florida,(16) and Virginia.(17)

Now that courts staunchly have entered the thicket of racial gerrymandering, they are beginning to face the difficult task of providing appropriate remedies. Principles of federalism and separation of powers initially require federal courts to afford states a meaningful opportunity to cure defective districts by adopting new redistricting plans.(18) Yet once federal courts have interjected themselves into states' redistricting controversies, many states have found themselves too politically paralyzed, or politically unwilling, to enact remedial plans -- thus defaulting this duty back to the federal courts.(19)

These courts are then faced with a thorny question: What principles should guide federal courts in redrawing racially gerrymandered districts? It is well settled that federal courts charged with the "unwelcome obligation" of curing a redistricting violation must alter the state's original plan only as necessary to cure the constitutional defect(20) while deferring, as much as possible, to all legitimate state policies -- such as respecting traditional political lines, protecting incumbents, and avoiding vote dilution -- embodied in the original plan.(21) Yet these seemingly straightforward directives can dissolve quickly when federal courts attempt to apply them to the "expressive harm"(22) caused by a racial gerrymander. The problem is that any attempt to cure Shaw's expressive harm forces a court to redraw district lines, an action that imposes very concrete consequences on a state's political landscape.(23) To put the conundrum succinctly: Just how far can a federal court go in affecting electoral outcomes when its purpose is to cure only appearances and motivations?(24)

If the answer is to be judged by the actions of the first few federal district courts to address the issue, the answer would appear to be "pretty far." Despite the fact that Shaw injuries purport to have nothing to do with electoral outcomes or partisan gerrymandering, all three courts that have drafted congressional redistricting plans as remedies for these racial gerrymandering violations have altered dramatically the political landscape of the states at issue, in terms of both trampling states' policies of protecting incumbents and altering the partisan balance of states' congressional delegations. In Texas, after striking down three districts as unconstitutional racial gerrymanders,(25) the court redrew thirteen districts -- invalidating already-held primaries in each of those districts -- significantly altered the partisan balance in two of those districts, and moved two primary winners into new districts.(26) In Georgia, striking down one district, the district court redrew all eleven of the state's districts, placed four incumbents in two districts -- thereby creating two open seats -- and moved a fifth incumbent into a new district.(27) In Louisiana, after striking down one district, the court redrew all seven of the state's districts, shifting decisively the partisan balance in one district, and altering the majority-minority district so drastically that its incumbent, Cleo Fields, decided that it would be futile to run for re-election.(28)

These striking results were caused, at least in part, because each remedial court claimed to ignore all "political" considerations in its redistricting plan.(29) Granted, if political changes this drastic were unavoidable, regardless of the remedy chosen, these claims of neutrality might have added legitimacy to the courts' remedies. But the troubling aspect of these early decisions is that such excessive political changes did not need to take place; the courts chose to subordinate states' express political redistricting policies to other redistricting criteria, such as compactness and respect for natural geographical boundaries.(30) Even more unsettling is the fact that the bulk of these critical alterations occurred in districts already declared constitutional,(31) and that, at least in Texas and Louisiana, the partisan shifts consistently benefitted the same political party, the Republicans. For some reason, these federal courts apparently viewed the states' political considerations in the states' redistricting plans as either not worthy of respect or beyond their institutional reach.

This Note contends that neither of the courts' possible suppositions is accurate: if a state has expressed a policy of furthering identifiable political ends through redistricting, then a federal court can and should respect that policy when it remedies a Shaw violation in that state's redistricting legislation. Part I of the Note defines the expressive harm recognized in Shaw violations, emphasizing that the injury this harm involves district appearances and racial classifications, not electoral outcomes. Based on this harm, Part II describes the principles that should guide courts in fashioning remedies to Shaw claims. In particular, the second Part argues that, if the state has sought to further political ends through its redistricting plan, federal courts should strive to minimize alterations of the state's political landscape. Part III examines the policy consequences of such a rule. It maintains that requiring courts to consider the political consequences of their decisions does not cause courts to overstep institutional constraints on the federal judiciary. Rather, it encourages courts to exercise judicial restraint in refusing to alter unnecessarily a state's political status quo.


    In order to fashion an appropriate remedy for racial gerrymandering violations, one must first understand the Supreme Court's concept of the harm to be cured. Therefore, this Part separates Shaw's myths from its realities. Section I.A focuses the discussion by straining out harms not implicated in Shaw violations. Section I.B then surveys the Court's various attempts to define the real harm Shaw violations cause, and concludes that the only constitutional harm that concerns the entire Shaw majority is the appearance of a state classifying its citizens along racial lines.

    1. Harms Not Implicated by Shaw Violations

      As a preliminary step toward productively examining the constitutional harm that Shaw seeks to address, two points must be made clear at the outset: (1) Shaw claims are not vote-dilution claims; and (2) Shaw claims are not partisan-gerrymandering claims.

      1. Vote Dilution

        The Supreme Court has carefully emphasized that Shaw claims are "analytically distinct" from vote-dilution claims.(32) In the case of racial vote dilution, plaintiffs, as members of a racial minority, suffer the injury of having the strength of their votes systematically "diluted" on a statewide basis as compared to members of the majority group.(33) In short, the state's plan harms the plaintiffs because it prevents them from having equal opportunities to elect representatives of their choice.(34) Similarly, in a malapportionment case, the plaintiffs suffer the injury of having their vote diluted because there are more people in their district than in another; thus, each of their votes does not "count" as much as someone's in a district with fewer people.(35) These harms strike at the heart of what is considered "the right to vote."(36)

        Yet in Shaw cases, the "right to vote" -- in other words, the right to affect electoral outcomes -- remains unaffected. In each of the Shaw challenges brought to date, the percentage of congressional districts that were majority-white districts equalled or exceeded the percentage of the state's white population.(37) This point is absolutely crucial: successful Shaw plaintiffs do not bear the harm of enduring unfair or flawed election results due to discrimination in the state's redistricting map.(38) No one's vote is diluted;(39) no one's vote counts...

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