State Legislative Redistricting Websites: 

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Supreme Court Cases from 1993 through 2001:

Shaw v. Reno (92-357) Decided 1993
Voinovich v. Quilter (91-1618) Decided 1993 
Johnson v. DeGrandy (92-519) Decided 1994
Holder v. Hall (91-201) Decided 1994
Miller v. Johnson (94-631) Decided 1995
United States v. Hays (94-558) Decided 1995
Bush v. Vera (94-805) Decided 1996
Shaw v. Hunt (94-923) Decided 1996
Lawyer v. Department of Justice (95-2024) Decided 1997
Reno v. Bossier Parish School Board (98-405) Decided 2000

FROM: Daniel E. Troy
Partner, Wiley, Rein & Fielding
Associate Scholar, American Enterprise Institute 

DATE: July 12, 2000

RE: Use of Race in 2000 Redistricting

You have asked for my views about the legality and prudence of using race to draw district lines during the upcoming rounds of redistricting.  In short, I believe that the Supreme Court has made clear its view that “the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve.”  Rice v. Cayetano, 120 S. Ct. 1044, 1046 (2000).  In cases decided during the last decade, the Court has held that section 5 of the Voting Rights Act “prevents nothing but backsliding,” Reno v. Bossier Parish School Board, 120 S. Ct. 866, 875 (2000); that section 2 “does not require a State to create, on predominantly racial lines, a district that is not ‘reasonably compact,’” Bush v. Vera, 571 U.S. 952, 979 (1996) (citation omitted); and that bizarre, non-compact districts drawn along racial lines are unconstitutional, Miller v. Georgia, 515 U.S. 900 (1995).  Accordingly, I conclude that the approach to redistricting most likely to withstand a constitutional or Voting Rights Act challenge would not use race as a consideration in redistricting until after the process has been completed.  At that point, jurisdictions covered by section 5 should check the plan resulting from their redistricting process to ensure that there has been no prohibited “backsliding.” 

First, for section 5 jurisdictions, Bossier Parish has affirmed the limited nature of the preclearance requirement.  So long as a jurisdiction can show that the proposed change (such as the new redistricting plan) does not have the purpose and effect of leading to a “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise,” Beer v. United States, 425 U.S. 130, 141 (1976), quoted in Bossier Parish, 120 S.Ct. at 867, it must be precleared.  Bossier Parish clarified that the word “purpose” in section 5 related to retrogression only.  Accordingly, so long as the new plan does not have the purpose and effect of leaving minorities in a worse position than before, it will be precleared.

Ensuring that there is no retrogression necessarily involves looking at the racial make-up of the districts within a newly adopted redistricting plan.  And it is theoretically possible to begin the redistricting process by holding constant any majority-minority districts and redistricting “around” those districts so to speak.  For reasons discussed below, however, I believe that it is more prudent to use race only to “check” the output of a process which is as race-neutral as possible.

In almost a half-dozen cases, the Supreme Court has established that race may not be “the predominant factor motivating the legislature’s [redistricting] decision.”  Miller v. Georgia, 515 U.S. at 901.   This means that legitimate districting principles cannot be subordinated to race.  Of course, just as it is impossible to ask legislators to ignore where highways are situated and which neighborhood is Catholic or Jewish, it is impossible for legislators to ignore race in the redistricting process entirely.  The Supreme Court has recognized that race is ever-present.  For this reason, though, relying or even referring to racial considerations overtly would raise suspicions and create a bad record that race is being employed as the predominant factor in line-drawing, and not just one of many factors. 

The Supreme Court has also clarified that section 2 of the Voting Rights Act does not require a state to create majority-minority districts wherever it is theoretically possible to do so or wherever the percentage of representatives elected from minority-controlled districts is lower than the percentage of a state’s minority population.  Section 2 requires a majority-minority district to be drawn only if a minority group is sufficiently large and geographically compact, politically cohesive, and if there is evidence of white bloc voting against minorities.  Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).  Recent years have confirmed how rare successful section 2 challenges are; in particular, evidence of white bloc voting is increasingly hard to come by.

Legislatures thus face a greater litigation risk from using race than by not using race to redistrict.  Although nothing can prevent lawsuits (indeed, many states may face simultaneous challenges that they took race into account and that they did not do so enough) the experience in the Supreme Court during the last decade strongly suggests that states have more to fear in terms of liability from racial gerrymandering claims than from section 2 suits.  Accordingly, states can reduce this risk by refusing to use racial considerations in the redistricting process.  Most notably, the computer programs employed to redistrict should use political and other demographic data, but not racial data.  Bush v. Vera, 571 U.S. 952.  Indeed, it was precisely the omnipresence of racial data in the redistricting software which caused the Supreme Court to invalidate three congressional districts in Bush v. Vera, 517 U.S. 952. 

Finally, states should eschew the use of race in redistricting to the extent possible because “[d]istinctions [based on ancestry are by their] nature odious to a free people whose institutions are founded upon the doctrine of equality.”  Rice v. Cayetano, 120 S. Ct. at 1057 (quotation marks and citation omitted). 

Dear _____________________:

As the legislature approaches the deadline for enacting a redistricting bill this year, we write to express our sincere hope that the state will not make the costly and divisive mistakes made nearly ten years ago. These mistakes resulted in lawsuits brought by individuals of both political parties when race and ethnicity were used to draw clearly unconstitutional legislative and congressional districts. 

The litigation of the past does not need to be repeated during this round of redistricting. This time the citizens of your state deserve compact, neighborhood- and community based voting districts that unite us as Americans, regardless of our skin color or ancestry. Common neighborhood issues such as schools, crime, roads, and job opportunities are much more important than race.

The racial and ethnic gerrymandering that pervaded past plans should not be allowed to infect new plans, regardless of how cleverly it may be disguised. We should not have seats drawn to ensure the election of a person with a specific skin color or ethnic heritage, any more than we should have districts drawn to ensure the defeat of a person because of his race or ethnicity. 

The Voting Rights Act of 1965 was passed to protect minority voters, not minority or majority politicians. Nor should race and ethnicity be used as an instrument to protect incumbent officeholders. After all, literacy tests were effective at protecting incumbents, but they too were proven to be illegal. 

In the same vein, political affiliation cannot be used as a proxy for race. Districts that resemble Rorshach tests won't pass constitutional scrutiny if race correlates perfectly with the boundaries and is the real reason for the line-drawing, even if partisan affiliation is claimed as the justification. In the landmark civil rights case Gomillion v. Lightfoot, decided over 40 years ago, a city redrew its boundaries to exclude black citizens. Everyone knew that the city was motivated by race, not political affiliation.

The Supreme Court has heard over 10 racial gerrymandering cases from 1993 through 2000. In each one the Court found that race may not be used as the predominant factor in drawing districts. (See enclosed legal opinion from Daniel E. Troy, who successfully argued Bush v. Vera to the Supreme Court during the 1995-96 term.) These decisions also make clear that directives from the U.S. Department of Justice should be reviewed with a skeptical eye by the state's own lawyers. 

It is our belief that the redistricting process should be a legislative one. The courts should not have a role in this process unless the law has been violated. However, we stand ready to challenge every plan that results in non-traditional, non-compact voting districts that separate neighbor from neighbor on the basis of race. Texas, North Carolina, Louisiana, Florida, New York, South Carolina, Georgia, and Virginia spent enormous amounts of money defending these improperly drawn districts during the last 10 years, to no avail. More importantly, the creation and defense of these racially gerrymandered districts poisons the esteem citizens hold for the legislative process and their legislators. 

We are confident this litigation can be avoided during this round by creating proper districts, but remain vigilant to the results you produce. We remain committed to helping your state avoid the mistakes of the past. Many of us and our staffs are available to testify before your redistricting committees and assist in reviewing redistricting procedures. 

Please contact us through Mr. Roger Clegg, General Counsel of the Center for Equal Opportunity, at 202-639-0803 or Mr. Edward Blum, director of legal affairs at the American Civil Rights Institute, at (703) 327-1115.

Sincerely yours,

Susan Au Allen
US Pan Asian American Chamber of Commerce

Phyllis Berry Myers
Center for New Black Leadership

Edward Blum
American Civil Rights Institute

Clint Bolick
Institute for Justice

Linda Chavez
Center for Equal Opportunity

Lynn Hogue
Southeastern Legal Foundation

Terry Pell
Center for Individual Rights

Kimberly Schuld
Independent Women's Forum

Abigail Thernstrom 
Manhattan Institute