CITATION: 92 Mich. L. Rev. 483
PAGE 2
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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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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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 r