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Bush v. Vera (94-805), 517 U.S. 952 (1996).
Opinion
[ O'Connor ]
Concurrence
[ O'Connor ]
Syllabus
Dissent
[ Stevens ]
Concurrence
[ Kennedy ]
Dissent
[ Souter ]
Concurrence
[ Thomas ]
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Nos. 94-805, 94-806 and 94-988


GEORGE W. BUSH, GOVERNOR OF TEXAS, et al., APPELLANTS 94-805 v. AL VERA et al. WILLIAM LAWSON, et al., APPELLANTS 94-806

on appeals from the united states district court for the southern district of texas

[June 13, 1996]

Justice O'Connor, concurring.

I write separately to express my view on two points. First, compliance with the results test of §2 of the Voting Rights Act (VRA) is a compelling state interest. Second, that test can co exist in principle and in practice with Shaw v. Reno, 509 U.S. 630 (1993), and its progeny, as elaborated in today's opinions.

As stated in the plurality opinion, ante, at 23 (O'Connor, J., joined by Rehnquist, C. J., and Kennedy J.), this Court has thus far assumed without deciding that compliance with the results test of VRA §2(b) is a compelling state interest. See Shaw v. Hunt, ___ U. S. ___, ___ (1996) (Shaw II) [draft op. at 13]; Miller v.

Johnson, 515 U. S. ___, ___%___ (1995) (slip op., at 18-22). Although that assumption is not determinative of the Court's decisions today, I believe that States and lower courts are entitled to more definite guidance as they toil with the twin demands of the Fourteenth Amendment and the Voting Rights Act.

The results test is violated if,

"based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [e.g., a racial minority group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).

In the 14 years since the enactment of §2(b), we have interpreted and enforced the obligations that it places on States in a succession of cases, assuming but never directly addressing its constitutionality. See Johnson v. De Grandy, 512 U. S. ___ (1994); Holder v. Hall, 512 U. S. ___ (1994); Voinovich v. Quilter, 507 U.S. 146 (1993); Growe v. Emison, 507 U.S. 25, 37-42 (1993); Chisom v. Roemer, 501 U.S. 380 (1991); Thornburg v. Gingles, 478 U.S. 30 (1986); cf. Chisom, supra, at 418 (Kennedy, J., dissenting) (noting that a constitutional challenge to the statute was not before the Court). Meanwhile, lower courts have unanimously affirmed its constitutionality. See United States v. Marengo County Comm'n, 731 F. 2d 1546, 1556-1563 (CA11), cert. denied, 469 U.S. 976 (1984); Jones v. Lubbock, 727 F. 2d 364, 372-375 (CA5 1984); Shaw v. Hunt, 861 F. Supp. 408, 438 (EDNC 1994), aff'd, Shaw II, ante, p. ___; Prosser v. Elections Bd., 793 F. Supp. 859, 869 (WD Wis. 1992); Wesley v. Collins, 605 F. Supp. 802, 808 (MD Tenn. 1985), aff'd, 791 F. 2d 1255 (CA6 1986); Jordan v. Winter, 604 F. Supp. 807, 811 (ND Miss.), aff'd sub nomAllain v. Brooks, 469 U.S. 1002 (1984); Sierra v. El Paso Independent School Dist., 591 F. Supp. 802, 806 (WD Tex. 1984); Major v. Treen, 574 F. Supp. 325, 342-349 (ED La. 1983); accord, Hartman, Racial Vote Dilution and Separation of Powers: An Exploration of the Conflict Between the Judicial "Intent" and the Legislative "Results" Standards, 50 Geo. Wash. L. Rev. 689, 739-752 (1982). Cf. South Carolina v. Katzenbach, 383 U.S. 301 (1966) (upholding the original VRA as a valid exercise of Congress' power under §2 of the Fifteenth Amendment); Fullilove v. Klutznick, 448 U.S. 448, 477 (1980) (Katzenbach and its successors interpreting §2 of the Fifteenth Amendment "confirm that congressional authority extends beyond the prohibition of purposeful discrimination to encompass state action that has discriminatory impact perpetuating the effects of past discrimination"); White v. Alabama, 867 F. Supp. 1519, 1549 (MD Ala. 1994) (the results test "has not been held unconstitutional and complying with it remains a strong state interest"), vacated and remanded on other grounds, 74 F. 3d 1058, 1069 (CA11 1996) (noting that "Section 2 was enacted to enforce the Fifteenth Amendment's prohibition against denying a citizen the right to vote `on account of race' ").

Against this background, it would be irresponsible for a State to disregard the §2 results test. The Supremacy Clause obliges the States to comply with all constitutional exercises of Congress' power. See U. S. Const., Art. VI, cl. 2. Statutes are presumed constitutional, see, e.g., Fairbank v. United States, 181 U.S. 283, 285 (1901), and that presumption appears strong here in light of the weight of authority affirming the results test's constitutionality. In addition, fundamental concerns of federalism mandate that States be given some leeway so that they are not "trapped between the competing hazards of liability." Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 291 (1986) (O'Connor, J., concurring). We should allow States to assume the constitutionality of §2 of the Voting Rights Act, including the 1982 amendments.

This conclusion is bolstered by concerns of respect for the authority of Congress under the Reconstruction Amendments. See Rome v. United States, 446 U.S. 156, 179 (1980). The results test of §2 is an important part of the apparatus chosen by Congress to effectuate this Nation's commitment "to confront its conscience and fulfill the guarantee of the Constitution" with respect to equality in voting. S. Rep. No. 97-417, p. 4 (1982). Congress considered the test "necessary and appropriate to ensure full protection of the Fourteenth and Fifteenth Amendments rights." Id., at 27. It believed that without the results test, nothing could be done about "overwhelming evidence of unequal access to the electoral system," id., at 26, or about "voting practices and procedures [that] perpetuate the effects of past purposeful discrimination," id., at 40. And it founded those beliefs on the sad reality that "there still are some communities in our Nation where racial politics do dominate the electoral process." Id., at 33. Respect for those legislative conclusions mandates that the §2 results test be accepted and applied unless and until current lower court precedent is reversed and it is held unconstitutional.

In my view, therefore, the States have a compelling interest in complying with the results test as this Court has interpreted it.

Although I agree with the dissenters about §2's role as part of our national commitment to racial equality, I differ from them in my belief that that commitment can and must be reconciled with the complementary commitment of our Fourteenth Amendment jurisprudence to eliminate the unjustified use of racial stereotypes. At the same time that we combat the symptoms of racial polarization in politics, we must strive to eliminate unnecessary race based state action that appears to endorse the disease.

Today's decisions, in conjunction with the recognition of the compelling state interest in compliance with the reasonably perceived requirements of §2, present a workable framework for the achievement of these twin goals. I would summarize that framework, and the rules governing the States' consideration of race in the districting process, as follows.

First, so long as they do not subordinate traditional districting criteria to the use of race for its own sake or as a proxy, States may intentionally create majority minority districts, and may otherwise take race into consideration, without coming under strict scrutiny. See ante, at 3-4 (plurality opinion); post, at 7-9 & n. 8, 26 (Stevens, J., dissenting); post, at 14, 23, 31 (Souter, J., dissenting). Only if traditional districting criteria are neglected and that neglect is predominantly due to the misuse of race does strict scrutiny apply. Ante, at 7, 9-10, 24 (plurality opinion).

Second, where voting is racially polarized, §2 prohibits States from adopting districting schemes that would have the effect that minority voters "have less opportunity than other members of the electorate to . . . elect representatives of their choice." §2(b). That principle may require a State to create a majority minority district where the three Gingles factors are present--viz., (i) the minority group "is sufficiently large and geographically compact to constitute a majority in a single member district," (ii) "it is politically cohesive," and (iii) "the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate," Thornburg v. Gingles, 478 U. S., at 50-51.

Third, the state interest in avoiding liability under VRA §2 is compelling. See supra, at 1-4; post, at 34 (Stevens, J., dissenting); post, at 23 (Souter, J., dissenting). If a State has a strong basis in evidence for concluding that the Gingles factors are present, it may create a majority minority district without awaiting judicial findings. Its "strong basis in evidence" need not take any particular form, although it cannot simply rely on generalized assumptions about the prevalence of racial bloc voting.

Fourth, if a State pursues that compelling interest by creating a district that "substantially addresses" the potential liability, Shaw II, ante, at ___ [draft op. at 18], and does not deviate substantially from a hypothetical court drawn §2 district for predominantly racial reasons, cf. ante, at 25 (plurality opinion) (explaining how District 30 fails to satisfy these criteria), its districting plan will be deemed narrowly tailored. Cf. ante, at 27 (plurality opinion) (acknowledging this possibility); post, at 26 (Souter, J., dissenting) (same); post, at 34-36 (Stevens, J., dissenting) (contending that it is applicable here).

Finally, however, districts that are bizarrely shaped and non compact, and that otherwise neglect traditional districting principles and deviate substantially from the hypothetical court drawn district, for predominantly racial reasons, are unconstitutional. See ante, at 25 (plurality opinion).

District 30 illustrates the application of these principles. Dallas County has a history of racially polarized voting. See, e.g., White v. Regester, 412 U.S. 755, 765-767 (1973); Lipscomb v. Wise, 399 F. Supp. 782, 785-786 (ND Tex. 1975), rev'd, 551 F. 2d 1043 (CA5 1977), rev'd, 437 U.S. 535 (1978). One year before the redistricting at issue here, a district court invalidated under §2 the Dallas City Council election scheme, finding racial polarization and that candidates preferred by African American voters were consistently defeated. See Williams v. Dallas, 734 F. Supp. 1317, 1387-1394 (ND Tex. 1990). Expert testimony in this litigation also confirmed the existence of racially polarized voting in and around Dallas County. 4 Tr. 187; see also App. 227. With respect to geographical compactness, the record contains two quite different possible designs for District 30, the original Johnson Plan, id., at 139, and the Owens Pate Plan, id., at 141, that are reasonably compact and include, respectively, 44% and 45.6% African American populations. This evidence provided a strong basis for Texas' belief that the creation of a majority minority district was appropriate. But Texas allowed race to dominate the drawing of District 30 to the almost total exclusion of non racial districting considerations, and ultimately produced a district that, because of the misuse of race as a proxy in addition to legitimate efforts to satisfy §2, is bizarrely shaped and far from compact. See ante, at 10-11, 14-19 & n., 25 (plurality opinion); compare post, at 13-33 (Stevens, J., dissenting). It thus came under strict scrutiny and failed the narrow tailoring test.

As the disagreement among Members of this Court over District 30 shows, the application of the principles that I have outlined sometimes requires difficult exercises of judgment. That difficulty is inevitable. The Voting Rights Act requires the States and the courts to take action to remedy the reality of racial inequality in our political system, sometimes necessitating race based action, while the Fourteenth Amendment requires us to look with suspicion on the excessive use of racial considerations by the government. But I believe that the States, playing a primary role, and the courts, in their secondary role, are capable of distinguishing the appropriate and reasonably necessary uses of race from its unjustified and excessive uses.