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Nos. 94-805, 94-806 and 94-988

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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 Kennedy, concurring.

I join the plurality opinion, but the statements in Part II of the opinion that strict scrutiny would not apply to all cases of intentional creation of majority minority districts, ante, at 3, 7-8, require comment. Those statements are unnecessary to our decision, for strict scrutiny applies here. I do not consider these dicta to commit me to any position on the question whether race is predominant whenever a State, in redistricting, foreordains that one race be the majority in a certain number of districts or in a certain part of the State. In my view, we would no doubt apply strict scrutiny if a State decreed that certain districts had to be at least 50 percent white, and our analysis should be no different if the State so favors minority races.

We need not answer this question here, for there is ample evidence that otherwise demonstrates the predominance of race in Texas' redistricting, as the plurality shows, ante, at 3-22. And this question was not at issue in DeWitt v. Wilson, 856 F. Supp. 1409 (ED Cal. 1994), summarily aff'd in part and dism'd in part, 515 U. S. ___ (1995). (I note that our summary affirmance in DeWitt stands for no proposition other than that the districts reviewed there were constitutional. We do not endorse the reasoning of the district court when we order summary affirmance of the judgment. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam); Edelman v. Jordan, 415 U.S. 651, 671 (1974).)

On the narrow tailoring issue, I agree that the districts challenged here were not reasonably necessary to serve the assumed compelling state interest in complying with §2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973. As the plurality opinion indicates, ante, at 24, in order for compliance with §2 to be a compelling interest, the State must have a strong basis in the evidence for believing that all three of the threshold conditions for a §2 claim are met:

"[F]irst, `that [the minority group] is sufficiently large and geographically compact to constitute a majority in a single member district'; second, `that it is politically cohesive'; and third, `that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate.' " Growe v. Emison, 507 U.S. 25, 40 (1993), quoting Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).

The first Gingles condition refers to the compactness of the minority population, not to the compactness of the contested district. As the plurality observes, "[i]f, because of the dispersion of the minority population, a reasonably compact majority minority district cannot be created, §2 does not require a majority minority district . . . ." Ante, at 25. We may assume, as the plurality does expressly, ibid., that there was sufficient evidence of racial polarization to fulfill the second and third Gingles conditions, and we may assume, as must be done to reach the narrow tailoring question, that the African American and Hispanic populations in Harris County and the African American population in Dallas County were each concentrated enough to form a majority in a reasonably compact district, thereby meeting the first Gingles condition.

If a State has the assumed compelling interest in avoiding §2 liability, it still must tailor its districts narrowly to serve that interest. "[T]he districting that is based on race [must] `substantially addres[s] the §2 violation.' " Ante, at 23 (quoting Shaw v. Hunt, ante, at 18 (Shaw II)). The State may not engage in districting based on race except as reasonably necessary to cure the anticipated §2 violation, nor may it use race as a proxy to serve other interests. Ante, at 25. The plurality gives as an example of the former the fact that "District 30 . . . reaches out to grab small and apparently isolated minority communities which, based on the evidence presented, could not possibly form part of a compact majority minority district." Ibid. (referring to tentacles of District 30 that coil around outlying African American communities in Collin and Tarrant Counties, ante, at 11). And, as the plurality further holds in a portion of its predominant factor analysis that is central to the narrow tailoring inquiry, District 30 also involved the illicit use of race as a proxy when legislators shifted blocs of African American voters to districts of incumbent Democrats in order to promote partisan interests. See ante, at 14-16.

Narrow tailoring is absent in Districts 18 and 29 as well. Although the State could have drawn either a majority African American or majority Hispanic district in Harris County without difficulty, there is no evidence that two reasonably compact majority minority districts could have been drawn there. Of the major alternative plans considered below, only the Owens Pate plan drew majority African American and majority Hispanic districts in Harris County, App. 142, but those districts were not compact. Section 2 does not require the State to create two noncompact majority minority districts just because a compact district could be drawn for either minority independently. See ante, at 25 ("§2 does not require a State to create, on predominantly racial lines, a district that is not `reasonably compact' "); Johnson v. De Grandy, 512 U. S. __, __ (1994) (slip op. at 27-28) (affirming, upon a finding of no vote dilution, district court decision not to give §2 remedies to both African Americans and Hispanics because population overlap made the remedies mutually exclusive). The race based districting that the State performed in drawing Districts 18, 29, and 30 was not justified by §2, or indeed by any other compelling interest, either real or assumed. That itself suffices to defeat the State's claim that those three districts were narrowly tailored. Shaw II, ante, at 15-19. (In this respect, I disagree with the apparent suggestion in Justice O'Connor's separate concurrence that a court should conduct a second predominant factor inquiry in deciding whether a district was narrowly tailored, see ante, at 6. There is nothing in the plurality opinion or any opinion of the Court to support that proposition. The simple question is whether the race based districting was reasonably necessary to serve a compelling interest.)

While §2 does not require a noncompact majority minority district, neither does it forbid it, provided that the rationale for creating it is proper in the first instance. Districts not drawn for impermissible reasons or according to impermissible criteria may take any shape, even a bizarre one. States are not prevented from taking into account race neutral factors in drawing permissible majority minority districts. If, however, the bizarre shape of the district is attributable to race based districting unjustified by a compelling interest (e.g., gratuitous race based districting or use of race as a proxy for other interests), such districts may "cause constitutional harm insofar as they convey the message that political identity is, or should be, predominantly racial," ante, at 26-27. While districts "may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless `beauty contests,' " ante, at 23, the District Court was right to declare unconstitutional the egregious, unjustified race based districting that occurred here.