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Nos. 94-805, 94-806 and 94-988
GEORGE W. BUSH, GOVERNOR OF TEXAS, et al., APPELLANTS 94-805
v.
on appeals from the united states district court for the southern district of texas
[
Justice
In my view, application of strict scrutiny in this case was never a close question. I cannot agree with Justice O'Connor's assertion that strict scrutiny is not invoked by the intentional creation of majority minority districts. See ante, at 3. Though Shaw v. Reno, 509 U.S. 630, 649 (1993) (Shaw I), expressly reserved that question, we effectively resolved it in subsequent cases. Only last Term, in Adarand Constructors, Inc. v. Pena, 515 U. S. __, __ (1995) (slip op., at 25-26), we vigorously asserted that all governmental racial classifications must be strictly scrutinized. [n.1] And in Miller v. Johnson, 515 U. S. __ (1995), Georgia's concession that it intentionally created majority minority districts was sufficient to show that race was a predominant, motivating factor in its redistricting. Id., at __ (slip op., at 16-17).
Strict scrutiny applies to all governmental classifications based on race, and we have expressly held that there is no exception for race based redistricting. Id., at __ (slip op., at 9-11); Shaw I, supra, at 643-647. While we have recognized the evidentiary difficulty of proving that a redistricting plan is, in fact, a racial gerrymander, see Miller, supra, at __ (slip op., at 14-15); Shaw I, 509 U. S., at 646-647, we have never suggested that a racial gerrymander is subject to anything less than strict scrutiny. See id., at 646 ("The difficulty of proof, of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race").
In Shaw I, we noted that proving a racial gerrymander "sometimes will not be difficult at all," ibid., and suggested that evidence of a highly irregular shape or disregard for traditional race neutral districting principles could suffice to invoke strict scrutiny. We clarified in Miller that a plaintiff may rely on both circumstantial and direct evidence and said that a plaintiff "must prove that the legislature subordinated traditional race neutral districting principles . . . to racial considerations." 515 U. S., at __ (slip op., at 15). The shape of Georgia's Eleventh District was itself "quite compelling" evidence of a racial gerrymander, but there was other evidence that showed that the legislature was motivated by a "predominant, overriding desire" to create a third majority black district. That evidence was the State's own concession that the legislature had intentionally created an additional majority black district. See id., at __ (slip op., at 16-17). On that record, we found that the district court could not have "reached any conclusion other than that race was the predominant factor in drawing Georgia's Eleventh District." Id., at __ (slip op., at 17).
We have said that impermissible racial classifications do not follow inevitably from a legislature's mere awareness of racial demographics. See id., at __ (slip op., at 14); Shaw I, supra, at 646. But the intentional creation of a majority minority district certainly means more than mere awareness that application of traditional, race neutral districting principles will result in the creation of a district in which a majority of the district's residents are members of a particular minority group. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (distinguishing discriminatory intent from "intent as volition" or "intent as awareness of consequences"). In my view, it means that the legislature affirmatively undertakes to create a majority minority district that would not have existed but for the express use of racial classifications--in other words, that a majority minority district is created "because of," and not merely "in spite of," racial demographics. See ibid. When that occurs, traditional race neutral districting principles are necessarily subordinated (and race necessarily predominates), and the legislature has classified persons on the basis of race. The resulting redistricting must be viewed as a racial gerrymander.
Our summary affirmance of DeWitt v. Wilson, 856 F. Supp. 1409 (ED Cal. 1994), summarily aff'd in part and dism'd in part, 515 U. S. __ (1995), cannot justify exempting intentional race based redistricting from our well established Fourteenth Amendment standard. "When we summarily affirm, without opinion, the judgment of a three judge district court we affirm the judgment but not necessarily the reasoning by which it was reached. An unexplicated summary affirmance settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument." Fusari v. Steinberg, 419 U.S. 379, 391-392 (1975) (Burger, C.J., concurring) (footnote omitted). I would not read our summary affirmance of DeWitt to eviscerate the explicit holding of Adarand or to undermine the force of our discussion of Georgia's concessions in Miller.
In this case, Texas readily admits that it intentionally created majority minority districts and that those districts would not have existed but for its affirmative use of racial demographics. As the State concedes in its brief:
"Texas intentionally maintained [District] 18 as an African American opportunity district and intentionally created [Districts] 29 and 30 as minority opportunity districts in order to comply voluntarily with its reasonable belief, based upon strong evidence, that it was required to do so by the Voting Rights Act, and because it desired to insure that minorities who have historically been excluded from the electoral process in Texas had a reasonable opportunity to elect candidates of their choice." Brief for State Appellants 25.
See also ante, at 3-6, 14-15 (reciting similar concessions by Texas). That is enough to require application of strict scrutiny in this case. [n.2] I am content to reaffirm our holding in Adarand that all racial classifications by government must be strictly scrutinized and, even in the sensitive area of state legislative redistricting, I would make no exceptions.
I am willing to assume without deciding that the State has asserted a compelling state interest. Given that assumption, I agree that the State's redistricting attempts were not narrowly tailored to achieve its asserted interest. I concur in the judgment.
Notes
1 In Adarand, we overruled Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), and held that strict scrutiny applies to racial classifications by the Federal Government as well as to those by the States. For quite some time, however, we have consistently held that race based classifications by the States must be strictly scrutinized. See, e. g., Richmond v. J. A. Croson Co., 488 U.S. 469, 493-494 (1989) (plurality opinion); id., at 520 (Scalia, J., concurring in judgment); Wygant v. Jackson Board of Ed., 476 U.S. 267, 273 (1986) (plurality opinion); id., at 285 (O'Connor, J., concurring in part and concurring in judgment).
2 It is unnecessary to parse in detail the contours of each challenged district. See ante, at 10-22. I agree that the geographic evidence is itself sufficient to invoke strict scrutiny, but once the State directly conceded that it intentionally used racial classifications to create majority minority districts, there was no need to rely on circumstantial evidence.