| Opinion [ Kennedy ] | Syllabus | Dissent [ Breyer ] |
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Nos. 95-1425 and 95-1460
LUCIOUS ABRAMS, Jr., G. L. AVERY, WILLIAM GARY CHAMBERS, Sr.,
and KAREN WATSON, APPELLANTS 95-1425 v.
on appeals from the united states district court for the southern district of georgia
[
Justice
Georgia elects 11 Members of the United States House of Representatives. Georgia's African American voting age population is just over 1.7 million, or about 27 percent of a total voting age population of about 6.5 million. See Miller v. Johnson, 515 U. S. ___, ___ (1995) (slip op., at 4). In 1992 Georgia's Legislature redrew congressional district boundaries so as to create an African American voting age majority in 3 of 11 districts. This Court held that three district plan unconstitutional. Id., at ___ (slip op., at 27). On remand, the District Court, inter alia, drew up a new redistricting plan with one majority minority district. Johnson v. Miller, 922 F. Supp. 1556, 1560-1561 (SD Ga. 1995). The basic legal issue before us now is whether the District Court should have retained (not one but) two majority minority districts.
The majority holds that the District Court could lawfully create a new districting plan that retained only one such district. But in my view that decision departs dramatically from the Georgia Legislature's preference for two such districts--a preference embodied in the legislature's earlier congressional district plans. A two district plan is not unconstitutional. And the District Court here, like the District Court in Upham v. Seamon, 456 U.S. 37, 43 (1982), "was not free . . . to disregard the political program of the . . . Legislature." For that reason, and others, I dissent.
The majority fully understands the relevance, and the importance, here of this Court's Upham decision. In Upham the Court said:
" `[J]ust as a federal district court . . . should follow the policies and preferences of the State, as expressed . . . in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution, . . . a district court should similarly honor state policies in the context of congressional reapportionment.' " Id., at 41 (quoting White v. Weiser, 412 U.S. 783, 794-795 (1973)).
The majority here, referring to this language, agrees:
"[A] court, as a general rule, should be guided by the legislative policies underlying the existing plan, to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act." Ante, at 3 (citing Upham, supra, at 43).
It is therefore common ground among us that the District Court should have drawn boundaries so as to leave two majority minority districts rather than one--unless there was no such state policy or preference; unless the creation of two such districts would have violated the Constitution or the Voting Rights Act of 1965; or unless doing so simply would have proved impractical in light of other important districting objectives. See Upham, supra, at 41-42 (quoting White, supra, at 794-795. Unlike the majority, I cannot find present here any of these three countervailing justifications.
No one denies that, if one looks at the redistricting plans proposed
by the Georgia Legislature, one will find in them expressions of state
"policies and preferences" for two majority minority districts. Id.,
at 41; see also Appendix, figure 1, infra. After the 1990 Census,
which increased the size of Georgia's congressional delegation from 10
to 11, App. in Miller v. Johnson, O. T. 1994, No.
What the District Court and the majority deny is that the "preferences" expressed in these three redistricting plans reflect the Georgia Legislature's true preference. The District Court said that "Georgia's current plan was not the product of Georgia's legislative will," but rather "was tainted by unconstitutional DOJ interference" into the "process" that produced the plan. 922 F. Supp., at 1560. The majority repeats the District Court's comment about DOJ's "thorough `subversion of the redistricting process' since the 1990 census," ante, at 8, adds that the "State was predominantly driven" by "steady Justice Department pressure," ante, at 10, and concludes:
"Interference by the Justice Department . . . disturbed any sound basis to defer to the 1991 unprecleared plan. . . ." Ante, at 14.
I believe, however, that the majority's conclusion--its reason for refusing to recognize the Georgia Legislature's two district preference--is wrong both as a matter of fact and as a matter of law.
The conclusion is factually inadequate because the testimony cited, ante, at 11, to show unusual DOJ pressure in the 1991 redistricting process shows nothing unusual. It shows only that the Justice Department told Georgia that it must comply with the VRA, which statement Georgia legislators might have considered an exhortation to create more than one majority minority district. Tr. 16 (Apr. 18, 1994); id., at 431-433 (Oct. 30, 1995); Deposition of Linda Meggers, Record 20 (May 6, 1994). Indeed, the record indicates that a number of Georgia legislators affirmatively wanted two majority minority districts. Tr. 431-432 (Oct. 30, 1995); Deposition of Linda Meggers, Record 22, 32 (May 6, 1994). It also shows that the 1991 two district plan was the result of an " `understanding' between the leadership in the legislature and the black caucus"; See ante, at 11; see also Tr. 32 (Apr. 18, 1994), id., at 431-432 (Oct. 30, 1995); Deposition of Linda Meggers, Record 22, 32 (May 6, 1994); that the 1991 "two district" plan (as the State conceded) "was not perceived as a `racial gerrymander,' " ante, at 11 (quoting Brief for Appellants Miller et al. in Miller v. Johnson, O. T. 1994, No. 94-631, p. 49); and that the 1991 "two district" plan (as the District Court found) "like most redistricting efforts, was the culmination of committee meetings, public hearings, examination of various districting proposals, and many hours spent with an extremely sophisticated computer." Johnson v. Miller, 864 F. Supp. 1354, 1363 (1994). Indeed, much of the departmental "interference" to which the majority refers took place after adoption of the 1991 Plan, see ante, at 4; Tr. 21, 39-40, 43, 75 (Oct. 30, 1995); Deposition of Linda Meggers, Record 79-80 (May 6, 1994); Miller, supra, at ___ (slip op., at 4-5); App. in No. 94-641, p. 16, and likely reflected departmental concern related to Georgia's voting discrimination history. See Busbee v. Smith, 549 F. Supp. 494, 500, aff'd, 459 U.S. 1166 (1982); App. 139-140.
The majority is legally wrong because this Court has said that a court should determine a State's redistricting preferences by looking to the "plans proposed by the state legislature," Upham, 456 U. S., at 41 (quoting White, 412 U. S., at 794-795), not by evaluating the various political pressures that might have led individual legislators to vote one way rather than another (or, for that matter, by reviewing after the fact testimony regarding legislative intent). Cf. Upham, supra, at 41; Weiser, 412 U. S., at 794-795; see also Karcher v. Daggett, 462 U.S. 725, 740 (1983). "Districting plans," like other legislative acts, "are integrated bundles of compromises, deals, and principles." Bush v. Vera, 517 U. S. ___, ___ (1996) (slip op., at 17) (Souter, J., dissenting) (quoting Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election District Appearances after Shaw v. Reno, 92 Mich. L. Rev. 483, 585-586 (1993)). District plans, like other legislative Acts, may reflect not only reasoned argument but also political pressures, brought to bear by many different individuals and groups using subtle or unsubtle suggestions, promises or threats, of votes, support, publicity, and even lawsuits.
How can a court say that a legislative Act is legitimate--that it reflects legislative preferences or policies--when those who reason or cajole (or threaten suit) are farmers, businessmen, or consumer groups, but that the same legislative Act becomes illegitimate--that it does not reflect "true" legislative policy or preference--simply because those who seek to persuade (or threaten suit) represent the Justice Department. One cannot say that the Department's power is any less legitimate than that exercised by the many other groups that seek to influence legislative decisions; and its employees' sworn duty to uphold the law would seem more suitably characterized as a reason for paying greater attention to its views rather than as a reason for heeding them less. Regardless, I am not aware of any legal principle that supports the kind of distinction (among legislative pressures) that the District Court made; and the District Court's necessary reliance upon such a distinction, by itself, should warrant vacating the District Court's decision.
Moreover, what reason is there to believe that Georgia's Legislature did not "really" want the two majority minority districts that its earlier plans created? There is--as I indicated earlier--evidence that a number of legislators did want two majority minority districts. See, supra, at 4-5. And the legislature was aware of Georgia's long, well documented history of past discrimination in voting. See Busbee, supra; Rogers v. Lodge, 458 U.S. 613 (1982); Gray v. Sanders, 372 U.S. 368 (1963); see also Morris v. Fortson, 261 F. Supp. 538, 541 (ND Ga. 1966); Lodge v. Buxton, 639 F. 2d 1358, 1378 (CA5 1981) (racial bloc voting in Burke County); Carrollton Branch of NAACP v. Stallings, 829 F. 2d 1547, 1559 (CA11 1987) (racial bloc voting in Carroll County); Cross v. Baxter, 604 F. 2d 875, 880, n. 8 (CA5 1979); Paige v. Gray, 437 F. Supp. 137, 158 (MD Ga. 1977) (Albany, Ga.); Pitts v. Busbee, 395 F. Supp. 35, 40 (ND Ga. 1975) (Fulton County); Bailey v. Vining, 514 F. Supp. 452, 461 (M.D. Ga. 1981) (Putnam County); Wilkes County v. United States, 450 F. Supp. 1171, 1174 (DDC 1978); see generally E. Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, pp. 423-424 (1988); McDonald, Binford, & Johnson, Georgia, in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990, pp. 67-74 (C. Davidson & B. Grofman eds. 1994).
The Georgia Legislature was likely aware of the many unfortunate consequences that have flowed from this history. They include the facts that, when Congress first enacted the VRA, fewer than 30 percent of African Americans eligible to vote in Georgia had registered to vote, ibid., and that no African American had represented Georgia in Congress since Reconstruction, App. 140, when Congressman Jefferson Franklin Long briefly represented the State. B. Ragsdale & J. Treese, Black Americans in Congress, 1870-1989, p. 81 (1990).
The Georgia Legislature also might have thought that some degree (indeed, a less than proportionate amount of) majority minority districting could help to overcome some of the problems these facts suggest. Forty two members of Georgia's (180 member) House of Representatives themselves were elected from majority black districts; 30 of those members are black, 12 are white. App. 116. One hundred thirty eight members of Georgia's House were elected from majority white districts; 1 of those members is black, 137 are white. Ibid. Forty three members of Georgia's (56 member) Senate are elected from majority white districts; all of those members are white. Ibid. Until 1972, Georgia had not elected any African American Members of Congress since Reconstruction. 1 Reference Library of Black America 67 (K. Estell ed. 1994). Since then, it has elected a total of 4. Sherman, Diluting Black Votes for a Stronger Voice; Politicians Debate Impact of Remap, Atlanta Journal Constitution, Dec. 17, 1995. Each of those members originally represented a majority minority district (although two of them were recently re elected as incumbents after boundary changes created white majorities in their districts). Ante, at 17.
These circumstances help to explain why the 1991 Georgia Legislature might have thought that the creation of two majority minority districts would help overcome race related barriers--barriers erected by history and prejudice, reinforced by inertia and nonparticipation. Not only the three district plan, but also the 1991 Plan and the first (unprecleared) 1992 Plan suggest that that is what the legislature did think. And I can find no reason in the record not to take at face value what all the legislature's plans thereby suggest, namely that two majority minority districts represents a significant legislative "policy and preference."
The majority says that the legislature's two district preference is not owed Upham deference because a plan that embodied that preference is (or would be) "flawed by evidence of predominant racial motive," ante, at 14, or based upon race to a degree not reasonably necessary to comply with §2 of the VRA, 42 U.S.C. § 1973. The majority means that a two district plan would be unlawful--that it would violate the Constitution as interpreted in Miller. I cannot agree.
Miller considered the constitutionality of a three district plan. Its five Justice majority included one member who subsequently made clear that, even if racial considerations "predominate" in a State's drawing of a district boundary, that district is nonetheless lawful (because there is a compelling, hence redeeming interest) if the State has "a strong basis in evidence for concluding" that the district would otherwise violate VRA §2. Bush, supra, at ___ (O'Connor, J., concurring) (slip op., at 6); see also Miller, supra, at ___ (slip op., at 20 ); Shaw v. Reno, 509 U.S. 630, 656-657 (1993). That " `strong basis in evidence' need not take any particular form," Bush, supra, at ___ (O'Connor, J., concurring) (slip op., at 6), and where it is present, the State "may create a majority minority district without awaiting judicial findings." Ibid.; see also Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 289-291 (1986) (O'Connor, J., concurring); McDaniel v. Barresi, 402 U.S. 39, 41 (1971). The majority does not reject this standard. Ante, at 15-16. And it cannot deny that there is a "strong basis in the evidence" for believing that, after the 1990 Census, VRA §2, §5, or both, required the creation of a second majority minority district.
As the majority agrees, §2 requires a second majority minority district here, if the "totality of the circumstances" suggests that racial minorities are excluded from "participat[ing] in the political process" and "elect[ing] representatives of their choice," 42 U.S.C. § 1973(b), and the evidence shows that (1) the minority group "is sufficiently large and geographically compact to constitute a majority" in a second "single member district;" (2) the minority group is "politically cohesive;" and (3) the majority "votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).
The majority discusses only these last (Gingles) requirements at any length. As to the first requirement--compactness--the plans before the District Court raised two possibilities: first, the creation of a majority minority district in southwest Georgia--in approximately the area labeled District 2 in the court's plan (Appendix, figure 2, infra); and second, the creation of the majority minority district in southeastern central Georgia--in approximately the area labeled District 11 in the Justice Department's Illustrative Plan (Appendix, figure 3, infra).
The first possibility could have involved a compactly shaped district. Regardless, the DOJ's Illustrative Plan (which the District Court considered on the merits, 922 F. Supp., at 1561 n.4) suggests a newly drawn District 11 with an African American population of 54.60 percent, an African American voting age population of 51.04 percent, and a population deviation of 0.10 (This deviation percentage--the highest in the Illustrative Plan--was still lower than the deviation in two of the districts contained in the Court Plan.) It suggests that the District Court's statement that "the only way Georgia could create a majority minority district out of the minority concentrations in east central Georgia was to link" rural and urban communities by using "land bridges and appendages" similar to those used in the unconstitutional 1992 plan, 922 F. Supp., at 1567, n. 15, was erroneous. The proposed district is different from its unconstitutional predecessor. It does not try to build a land bridge linking southern Atlanta with Savannah. Compare Miller, 515 U. S., at ____ (slip op., at 6-7). And its boundaries are far more regular.
Moreover, it strikes me that the District Court's finding that a district in east central Georgia that encompassed both rural and urban African American communities could not be "compact" confuses a number of issues. Shaw v. Reno, and Miller compactness, which concerns the shape or boundaries of a district differs from §2 compactness, which concerns a minority group's compactness. Additionally, where (as here) the racial minority group is geographically compact, see Appendix, infra, at the fact that communities are rural or urban has more to do with political cohesiveness--whether communities share common interests--than with §2 compactness. To my knowledge, no case has ever held that rural and urban racial minorities cannot together create a compact minority for §2 compactness purposes. Moreover, it seems clear that rural and urban African American voters who live near each other might share important common interests; and I have found nothing in the record that suggests that the rural and urban black voters here, living near each other, do not share many common interests--in respect to many important legislative matters. See Karlan & Levinson, Why Voting Is Different, 84 Calif. L. Rev. 1201, 1216-1220 (1996); see also Gingles, supra, at 64 (citing Butler, Constitutional and Statutory Challenges to Election Structures: Dilution and the Value of the Right to Vote, 42 La. L. Rev. 851, 902 (1982), and S. Verba & N. Nie, Participation in America 151-152 (1972)).
The District Court considered the remaining two Gingles, factors (the minority's "political cohesiveness" and the majority's "bloc voting") under a single rubric, which the majority calls "the extent of racially polarized voting." Ante, at 16. Of course, Georgia's history, including the political results that I have mentioned before--the fact that African American representatives have come almost exclusively from majority minority districts--strongly support the existence of that "polarization." Moreover, appellants produced experts who testified that the percentage of District 11 white voters willing to vote for a black candidate varied from 0 to 26 percent, while the number of black voters willing to vote for a white candidate varied from 3 to 11 percent. App. 54-61, 69-70, 72. Other expert testimony suggested less polarization (placing the relevant numbers at 22 to 38 percent white for black and 20 percent to 23 percent black for white). Johnson v. Miller, 864 F. Supp. 1354, 1390 (SD Ga. 1994). But that other testimony rested in considerable part on local (and judicial, and primary) election results with multiple candidates or other special features that discouraged racial bloc voting, and for that reason they may have overstated the significance of the numerical results. See App. 93-94; Gingles, 478 U. S., at 57, nn. 25 and 26.
Regardless, as the majority says, the District Court found the statistical evidence inconclusive and "conflicting." 922 F. Supp., at 1567. And the District Court conceded the existence of "some degree of vote polarization." Ibid. (It simply said that the "degree" was not " `alarming.' " Ibid.). That African American incumbents were reelected does not, without more, disprove polarization. Gingles, supra, at 75 (citing S. Rep. No. 97-417, p. 29 (1982)) (quoting Zimmer v. McKeithen, 485 F. 2d 1297, 1307 (CA5 1973) (en banc), aff'd sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976) (per curiam) ("[T]he election of a few minority candidates does not `necessarily' foreclose the possibility of dilution of the black vote . . . "); at 57, 478 U. S., (quoting S. Rep. No. 97-417, supra, at 29, n. 215) (listing incumbency as a special factor in assessing vote polarization).
The majority says that, despite this evidence, the District Court's findings--of no §2 violation and no §5 violation--are adequately supported. Ante, at 19, 22. But that is because the District Court asked the wrong question. We need not decide whether the evidence shows the failure to create a second majority minority district violates §2. Cf. ante, at 14-19 (Nor, for that matter, need we decide whether the consequent reduction of such districts from 1 in 10 to 1 in 11 would, other things being equal, violate §5--which it might do. Cf. ante, at 19-22.). The question is not about whether the evidence proves §2 in fact requires two majority minority districts. The question is whether the evidence is strong enough to justify a legislature's reasonable belief that that was so. The record rather clearly demonstrates a "strong basis in the evidence" for believing that §2 or §5 required two majority minority districts. The Legislature thus could very reasonably have believed that was so. And, that is what I had believed the law, as set forth in this Court's opinions, required as legal justification for a district that otherwise would violate the basic predominant factor test of Miller.
This legal distinction--between whether a plan really violates §2 or might well violate §2--may seem technical. But it is not. A legal rule that permits legislatures to take account of race only when §2 really requires them to do so is a rule that shifts the power to redistrict from legislatures to federal courts (for only the latter can say what §2 really requires). A rule that rests upon a reasonable view of the evidence (i.e., that permits the legislature to use race if it has a "strong basis" for believing it necessary to do so) is a rule that leaves at least a modicum of discretionary (race related) redistricting authority in the hands of legislators. Again (and at a minimum), the District Court's use of the wrong test requires vacating its judgment.
To create a second majority minority district is not impractical nor would doing so significantly interfere with other important districting objectives. The easiest way to understand why this is so is to look at three plans that I have placed in the Appendix, infra. I shall call the Georgia Legislature's 1991 two district reapportionment Plan A. Appendix, figure 1, infra. I shall call the one district plan adopted by the court Plan B. Appendix, figure 2, infra. And I shall call the two district Illustrative Plan proposed by the Justice Department Plan C. Appendix, figure 3, infra. Inspection of the three plans suggests that the District Court's plan (B) is very similar to the other two (A and C) but for one critical feature, namely that it has one majority minority district rather than two.
Now consider the three plans in respect to each of the five districting considerations that the District Court called traditional and important. They are: (a) retaining one district in each corner of the state; (b) creating an urban minority district; (c) maintaining political subdivisions; (d) protecting incumbents; and (e) maintaining traditional district cores. 922 F. Supp., at 1564-1565.
All three plans are identical in respect to the first two considerations. Each maintains districts in three of the four state corners; each creates at least one urban minority district. Plan B--the District Court's plan--is marginally superior in respect to the third criterion (maintaining political subdivisions). Plan B splits six counties within the Atlanta area but none outside the Atlanta area. Id., at 1564. Plan C splits two counties (Bibb and Muscogee) outside the Atlanta area. (Appellants, however, advance nonracial justifications for the latter splits.)
Plan C is superior to Plan B in respect to the remaining two considerations. Plan C displaces no incumbents. Plan B displaces three incumbents (including two African Americans). Plan C maintains all district cores. Plan B moves many more Georgians into new districts.
Plan C has certain other advantages: It maintains, as provided in the Legislature's 1991 Plan, 138 of Georgia's 159 counties. Plan B maintains 123. Plan C has greater population uniformity among its districts. And, of course, Plan C provides for two majority minority districts--the number the Legislature provided in two of its three redistricting plans.
I add one point. This is not a suit in which there are claims of interference with the right to cast a ballot or "dilution" of the majority's vote. Cf. White v. Regester, 412 U.S. 755 (1973), Reynolds v. Sims, 377 U.S. 533 (1964), and Gomillion v. Lightfoot, 364 U.S. 339 (1960); see also Karlan & Levinson, 84 Calif. L. Rev., supra, at 1212-1216. Rather, the legislature's plans, insofar as they were race conscious, sought only to prevent what the legislature could reasonably have believed to be unlawful vote dilution--i.e., to prevent a violation of VRA §2, or perhaps §5. See Tr. 103 (Oct. 30, 1995, Testimony of Representative Sanford Bishop). Given this fact and given the three sets of considerations just mentioned, I do not see how the majority, consistently with Upham, can affirm the District Court's determination.
In other cases dissenting judges have expressed concerns that the Court's holdings and particularly its test--"predominant racial motive"--would prove unworkable, that they would improperly shift redistricting authority from legislatures to courts, and that they would prevent the legitimate use (among others the remedial use) of race as a political factor in redistricting, sometimes making unfair distinctions between racial minorities and others. See, e.g., Shaw v. Reno, 509 U. S., at 676-679 (Stevens, J., dissenting); id., at 679-687 (Souter, J., dissenting); Miller, 515 U. S., at ___ (Stevens, J., dissenting) (slip op., at 1); id., at ___ (Ginsburg, J., dissenting) (slip op., at 1); Bush, 517 U. S., at ___ (Stevens, J., dissenting) (slip op., at 1); id., at ___ (Souter, J., dissenting) (slip op., at 1); Shaw v. Hunt, 517 U. S. ___, ___ (1996) (Stevens, J., dissenting) (slip op., at 1). This suit exacerbates those concerns.
Legislators, for example, may ask just what the words "predominant racial motive" mean. The question has no obvious answer because racial motives (here efforts to include some additional African American voters in a particular district) never explain a predominant portion of a district's entire boundary (most of which inevitably reflects county lines, other geographical features, and sometimes even a discriminatory history, see App. at 120-121); yet those motives always predominate in respect to those voters (whether few or many) whom the legislature, with consciousness of race, places for that reason in one district rather than another. More importantly, here, unlike other cases that use somewhat similar words, the Court has not turned to other considerations, such as discriminatory intent, or vote dilution, or even a district's bizarre geographical shape, to help explain, or to limit the scope of, the words themselves. Cf. Shaw v. Hunt, supra; Regester, supra, Reynolds, supra; and Gomillion, supra. Thus, given today's suit, a legislator might reasonably wonder whether he can ever knowingly place racial minorities in a district because, for example, he considers them part of a "community" already there; because he thinks doing so will favor the Democrats (or the Republicans); because he wants to help an African American incumbent; because he believes doing so will encourage participation in the political process by racial minorities in whom historical discrimination has induced apathy; because he believes that doing so will help those same voters secure representatives that better reflect their needs and desires; or simply because he wants to see more racial minorities elected to office in a Nation that has become increasingly diverse.
The Court has not said that the Constitution forbids the use of race in all these instances. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, ___ (1995); see also Shaw v. Reno, supra, at 646-647; Miller, supra, at ___ (slip op., at 19 ); Bush, supra, at ___ (Stevens, J., dissenting) (slip op., at 1); Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280 (1986); Richmond v. J. A. Croson Co., 488 U.S. 469, 493-494 (1989). If the use of race as a criterion is wrong in some, but not all, of these instances, the legislator will need to know when, and why. And the legislator will need a legal principle that tells him whether, or when, the answers to such questions vary depending upon whether the group is racial or reflects, say, economics, education, or national origin. Miller, supra, at ___ (Ginsburg, J., dissenting) (slip op., at 12-13). It seems particularly difficult--without the use of some guiding or limiting principle, such as intent, vote dilution, or even bizarre district shape--to find principled legal answers to what, in the redistricting context, are traditionally political questions.
The decision also increases the risk of significant judicial entanglement in the inherently political redistricting process. See, e.g., Bush, supra, at ___ (Stevens, J., dissenting) (slip op., at 39); Miller, supra, at ___ (Ginsburg, J., dissenting) (slip op., at 2); see also Growe v. Emison, 507 U.S. 25, 33-34 (1993); Voinovich v. Quilter, 507 U.S. 146, 156-157 (1993); Chapman v. Meier, 420 U.S. 1, 26 (1975); White, supra, at 795; Reynolds, 377 U. S., at 586; Colegrove v. Green, 328 U.S. 549, 552-554 (1946). A Court test that forbids the overt use of race in any (or all) of the circumstances listed above will simultaneously permit plaintiffs to bring lawsuits complaining about the covert use of what was overtly forbidden. Any redistricting plan will generate potentially injured plaintiffs, willing and able to carry on their political battles in a judicial forum. And judges (unable to refer say to intent, dilution, shape, or some other limiting principle) will find it difficult to dismiss those claims--particularly if (as the majority here says) the law, deprives the legislature even of such defenses as a reasonable belief that a particular use of race was legally required.
Nor can I find any legal principle that might constitute a simple, administrable stopping place--a principle that could serve the same function in this context as does the one person one vote rule in the context of reapportionment. See Miller, supra, at ___ (Ginsburg, J., dissenting) (slip op., at 6). A simple "color blind" test--a test that rules out race consciousness across the board--will not work. Bush, supra, at ___ (Souter, J., dissenting) (slip op., at 18-19). Legislators can and should use race consciously to prevent creating districting plans that discriminate against racial minorities, say by "diluting" their votes. Cf. Adarand Constructors, Inc., supra, at ___. Moreover, this Court, recognizing the harm caused by slavery and 80 subsequent years of legal segregation has held that legislators, within limits, can make conscious use of race in an effort to overcome the present effects of past discrimination. Ibid.; see also Shaw v. Reno, supra, at 646-647; Miller, 515 U. S., at ___ (slip op., at 19 ). There may be other instances as well. Further, any test that applied only to race, ignoring, say, religion or national origin, would place at a disadvantage the very group, African Americans, whom the Civil War Amendments sought to help, see Miller, supra, at ___ (Ginsburg, J., dissenting) (slip op., at 4-5). But judicial administration of a test that applied to all such voter group characteristics would involve courts yet more deeply in the basically political task of drawing and redrawing district boundaries.
In focusing on these practical considerations, I repeat what previous dissents have argued. I do so because the holding here underscores the problems mentioned in those earlier dissents; and those problems, in turn, cast further doubt upon the soundness of today's decision.
I do not necessarily agree or disagree with those other aspects of the majority's opinion that I have not mentioned. But I shall stop with the main point. The Court, perhaps by focusing upon what it considered to be unreasonably pervasive positive use of race as a redistricting factor, has created a legal doctrine that will unreasonably restrict legislators' use of race, even for the most benign, or antidiscriminatory purposes. And that doctrine will draw the Court too deeply into an area of legislative responsibility. For the reasons set forth here, and in previous dissenting opinions, I do not believe that the Constitution embodies the doctrine that the majority enunciates. And I believe that Upham requires us to vacate the District Court's judgment and remand the suit.