Racial Gerrymandering: The Last Decade and the Next Millennium

A view of the future is shaped by one's experience; and certainly my views as to racial gerrymandering have been shaped by the litigation which I initiated to end this unconstitutional practice in my home state of North Carolina. So that you will understand my perspective, I shall focus initially on the history of that litigation.

A. The 1992 North Carolina Redistricting Plan

In response to the 1990 census, which revealed that North Carolina was entitled to an additional congressional seat, the General Assembly enacted in June 1991 a redistricting plan that included a single majority-black district. That district was located in the northeastern part of North Carolina. The Department of Justice - relying upon its erroneous "maximization" interpretation of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973b, see Miller v. Johnson, 515 U.S. 900 (1995) - denied preclearance of this redistricting plan because it was possible to create a second majority-black district.⁽¹⁾ Soon thereafter, in January 1992, the General Assembly enacted a new plan, which contained two majority-black districts - the First and the Twelfth. Each had a "bizarre" shape, as did several of the predominantly white districts. The First District was in the northeastern part of North Carolina, where the percentage of African-Americans in the total population is greatest. The Twelfth District wound in a "serpentine" manner through the Piedmont region, following generally along highway I-85 from Gastonia to Durham; and it used "white corridors" to connect concentrations of black citizens in Gastonia, Charlotte, Winston-Salem, Greensboro, High Point, and Durham. The Department of Justice swiftly precleared this plan. Under the circumstances, it had little choice because its "maximization" mandate had been followed.

However on February 28, 1992, just a few days after the new plan was enacted, the North Carolina Republican Party launched a constitutional attack against this plan on the ground that it was a political gerrymander designed to assist Democrats.⁽²⁾ This challenge was promptly rejected by a three-judge district court. See Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992), aff'd, 506 U.S. 801 (1992). At this time the state defendants were asserting that the plan could not be attacked as a political gerrymander because it actually was based on race and resulted from preclearance requirements of the Department of Justice.

On March 12, 1992, after the Republican challenge had failed, five registered voters in Durham, North Carolina - a city bisected by the Twelfth District - filed suit against various federal and state defendants.⁽³⁾ I was not only the attorney for these voters, but I was also one of the plaintiffs - along with a son of mine, my personal secretary, a Duke Law School colleague, and a longtime friend Ruth Shaw, who was the lead plaintiff. All of the plaintiffs were Democrats; and they alleged that the 1992 redistricting plan was motivated by race and was enacted to assure the election of African-Americans to Congress from the First and Twelfth districts.⁽⁴⁾ As to the state defendants, the action was predicated, inter alia, on a violation of the plaintiffs' right to equal protection under the Fourteenth Amendment - a claim which the Supreme Court later recognized as "analytically distinct." Shaw v. Reno, 509 U.S. 630, 652 (1993) ("Shaw I"); Miller v. Johnson, 515 U.S. 900, 911 (1995). The plaintiffs were all white but their complaint had no allegation as to their race because under their underlying theory was a constitutional injury was inflicted on all registered voters regardless of race.

On April 27, 1992, the three-judge district court dismissed the suit as to all the defendants.⁽⁵⁾ District Judge Voorhees dissented as to the dismissal of the state defendants; and this dissent was a prelude to many later dissents by him during subsequent stages of the litigation. In its opinion, the court took judicial notice that the plaintiffs were all white and concluded that for this reason they had no Equal Protection right to complain of a racial gerrymander. The plaintiffs appealed to the Supreme Court, which, on December 7, 1992, noted probable jurisdiction.⁽⁶⁾ When the appeal was subsequently argued before the Court, counsel for the state-defendants readily acknowledged that the redistricting plan was based on race.⁽⁷⁾

On June 28, 1993, the Supreme Court reversed the lower court as to the state defendants and remanded the case for trial, see Shaw I. Thereupon, the state defendants radically changed their position and claimed that, although considered by the General Assembly, race had not been a predominant motive in drawing the two challenged districts. Even though these districts obviously were not "geographically compact," the defendants insisted that they were "functionally compact." Nevertheless, the District Court readily concluded that both districts were race-based - although a majority of the three-judge court held on August 1, 1994 that the two contested districts could survive strict scrutiny because they had been carefully drawn to meet the requirements of Section 2 and Section 5 of the federal Voting Rights Act. See Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994).

When the plaintiffs appealed to the Supreme Court, the defendants continued to assert that neither the First nor the Twelfth District was motivated by race - an assertion somewhat at odds with the position they had taken in the first appeal.⁽⁸⁾ However, on June 13, 1996 the Court held that the creation of the Twelfth District had been motivated predominantly by race and that, contrary to the lower court's decision, this district could not survive strict scrutiny since it was not "narrowly tailored." Shaw v. Hunt, 517 U.S. 899 (1996)("Shaw II"). Even though they were white, the plaintiffs had standing to contest racial gerrymanders. However, because none of the plaintiffs were registered to vote in the First District, the Court ruled that they lacked standing to challenge that district and therefore its constitutionality would not be decided. See id. at 904. The case was remanded for further proceedings.

Shortly thereafter, Martin Cromartie and two other persons filed suit in the Eastern District of North Carolina to challenge the First District as an unconstitutional racial gerrymander. Since all three plaintiffs were registered to vote in that congressional district, they clearly had standing under Shaw II.

Meanwhile, the successful appellants in Shaw II were seeking without success to persuade the General Assembly to enact a new redistricting plan for the 1996 elections. Those plaintiffs also were unable to convince the three-judge district court that it should draw a redistricting plan for the 1996 elections unless the General Assembly promptly did so.⁽⁹⁾ However, the district court did rule that unless the Legislature drew a new plan by April 1, 1997, the court would itself do so. In light of the developments in the Shaw litigation, Cromartie and his fellow plaintiffs agreed to a stay of proceedings in their action.

B. The 1997 Redistricting Plan

On March 31, 1997, the General Assembly enacted a new redistricting plan whereunder Durham County and three other counties were removed from the Twelfth District. Since all five Shaw plaintiffs resided in Durham, they no longer were registered to vote in the Twelfth District; therefore, under Shaw II they lacked standing to challenge that district.⁽¹⁰⁾ After the Department of Justice granted preclearance of the 1997 plan, the three-judge district court entered an order on June 9, 1997 directing the Shaw plaintiffs to advise the court within ten days "whether they intend to claim that the plan should not be approved by the court because it does not cure the constitutional defects in the former plan and to identify the basis for that claim." In their response, the plaintiffs stated their view that the 1997 plan had continuing constitutional defects, but forthrightly they pointed out that "due to their lack of standing, any attack on the constitutionality of the new redistricting plan should be undertaken in a separate action maintained by persons who have standing."

The subsequent memorandum opinion entered by the district court on September 12, 1997 approved the plan but specifically stated:

[W]e close by noting the limited basis of the approval of the plan that we are empowered to give in the context of this litigation. It is limited by the dimensions of this civil action as that is defined by the parties and the claims properly before us. Here, that means that we only approve the plan as an adequate remedy for the specific violation of the individual equal protection rights of those plaintiffs who successfully challenged the legislature's creation of former District 12. Our approval thus does not - cannot - run beyond the plan's remedial adequacy with respect to those parties and the equal protection violation found as to former District 12.

In October 1997, the district court dissolved the stay order entered previously in the Cromartie action; and an amended complaint was filed, which added plaintiffs from the Twelfth District and additional plaintiffs from the First District. The state defendants obtained a short extension of time to answer and filed a motion in Shaw v. Hunt to consolidate with it the action that had been filed by Cromartie, as well as a different action, Daly v. High, No. 5:97-CV-750-BO (E.D.N.C.), which challenged both North Carolina's redistricting plan and its legislative reapportionment. This motion was denied by the Shaw three-judge court.

On January 15, 1998 Cromartie's action was assigned to the three-judge district court which was considering the Daly case.⁽¹¹⁾ Thereafter, the court proceeded quickly to hear conflicting motions for summary judgment filed by the Cromartie plaintiffs and the State defendants. The court rendered summary judgment against the defendants and enjoined use of the 1997 redistricting plan in the 1998 primaries and elections. The defendants unsuccessfully sought a stay order from the district court and then appealed its denial of a stay to the Supreme Court, which also denied their application for a stay.⁽¹²⁾ The defendants subsequently applied fruitlessly to the district court for leave to conduct primary elections under the 1997 plan in six congressional districts in eastern North Carolina that had been created by that plan. Thereafter they perfected their appeal to the Supreme Court.

C. The 1998 Redistricting Plan

The district court had allowed the General Assembly until May 22, 1998 to submit a redistricting plan for the 1998 elections. On May 21, 1998, a plan was enacted which left the First District as it had been drawn in 1997, but modified the Twelfth District. The plaintiffs filed their objections to the 1998 plan within the three day period allotted by the district court, and the state defendants responded in a like period. Subsequently, the plan was precleared by the Department of Justice; and then, on June 22, 1998, it was approved by the three-judge district court for use in the 1998 elections. However, the court noted that as to the First District neither the plaintiffs' motion for summary judgment nor that of the defendants had been granted. Therefore a trial would be necessary. Moreover, at trial the plaintiffs could offer further evidence as to the racial motive for the Twelfth District. Pursuant to 28 U.S.C. § 1253, the plaintiffs appealed from the district court's denial of their requested injunction.

D. The Hunt v. Cromartie Appeal

The law enacting the State's 1998 plan provided that the State would revert to the 1997 districting plan if the Supreme Court ruled favorably upon the State's appeal. See 1998 N.C. Sess. Law, ch. 2, sec. 1.1. This provision was undoubtedly included by the General Assembly in order to assure that the state's appeal of the lower court's adverse ruling as to the 1997 plan would not be dismissed for mootness. Ironically, because of this provision the legislature also assured that if its appeal were successful, the elections in the year 2000 would be conducted under a plan that had never been used before and that, consequently, the members of Congress elected in 1998 would undergo a further change in districts.⁽¹³⁾

The Supreme Court noted probable jurisdiction with respect to the state's appeal. Therefore, the parties agreed to stay the discovery proceedings that had been scheduled by the district court in preparation for a trial as to the legality of the 1998 plan. The plaintiffs also had filed an appeal from the judgment upholding the 1998 plan, but the Supreme Court took no action thereon - apparently to await the decision on the state's appeal. The state's appeal was supported by various amici curiae, including the United States, and some of the amici urged the Supreme Court to overrule or severely limit Shaw v. Reno.

On January 20, 1999, oral argument took place; and the decision was handed down on May 17, 1999. All nine justices agreed that the summary judgment entered by the district court should be reversed. However, there was no unanimous opinion. Justice Thomas delivered the opinion of the Court, in which he was joined by Justice O'Connor (who had authored the opinion of the Court in Shaw v. Reno), Chief Justice Rehnquist (who had authored the opinion of the Court in Shaw v. Hunt), and Justices Scalia and Kennedy. These five justices had also joined in both Shaw opinions. Justice Stevens wrote the opinion concurring in the judgment; and he and two the other three justices who joined therein had dissented in Shaw v. Reno.⁽¹⁴⁾

The opinion of the Court points out that "[t]he task of assessing a jurisdiction's motivation, however, is not a simple matter; on the contrary, it is an inherently complex endeavor, one requiring the trial court to perform a 'sensitive inquiry into such circumstantial and direct evidence of intent as maybe available.'" Citing Arlington Heights, 429 U.S. 252 (1977). Because districting legislation ordinarily is race-neutral on its face, the plaintiffs were required to prove that District 12 - which the lower court had held unconstitutional - was "drawn with an impermissible racial motive." "To carry their burden, appellees were obliged to show - using direct or circumstantial evidence, or a combination of both. . . - that 'the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations.'"

The plaintiffs had "offered only circumstantial evidence in support of their claim"; but, in the Court's view, their "evidence tends to support an inference that the State drew its district lines with an impermissible racial motive - even though they presented no direct evidence of intent." However, "the legislature's motivation is itself a factual question"; and because the state had presented some evidence that supported a political explanation "at least as well as and somewhat better than a racial explanation," the court concluded that summary judgment was inappropriate. The four justices who concurred in the judgment apparently were unwilling to concede that the circumstantial evidence even raised an inference of racial motive.

A week after its decision in Hunt v. Cromartie, the Supreme Court also vacated the judgment that had been rendered as to the 1998 plan and remanded to the lower court for consideration in light of the Supreme Court's opinion. Thus, at the present time, the parties are awaiting a trial as to the legality of the 1997 plan - a plan that has never been used in an election. In the 1997 plan, the Twelfth District is almost 47% African-American in population; it includes parts of six counties and contains most of the predominantly black precincts in Charlotte, Winston-Salem, Greensboro and High Point.⁽¹⁵⁾ The First District, which was the same in both the 1997 and 1998 plans, is majority-black and is in the northeastern part of the State.

E. Racial Gerrymanders in Other States

The situation in North Carolina - where the attack on racial gerrymanders commenced - is in stark contrast to that in several other states which have experienced similar litigation. For example, in Louisiana, the three-judge district court twice invalidated a racially gerrymandered redistricting plan and its "Mark of Zorro" District; finally the court developed a plan which the State legislature adopted and thereby mooted a pending court challenge. In Georgia, two majority-black districts - one of them the "March to the Sea" district running from Atlanta to Savannah - were overturned by the district court, which ultimately developed a new plan. In Texas, four racially gerrymandered districts were overturned and a new plan was developed by the district court.⁽¹⁶⁾ In that plan, thirteen districts had to be reconfigured to eliminate the effects of the gerrymander. In Virginia, a racially gerrymandered district was successfully attacked; and even in New York a three-judge district court invalidated such a district.

Contrary to the dire predictions of the persons who had been elected to Congress from racially-gerrymandered districts, they were reelected in redrawn districts which were not gerrymandered.⁽¹⁷⁾ Proponents of racially gerrymandered districts insist that in these instances reelection was the result of incumbency - which could have been attained only in racially gerrymandered districts. This contention, however, remains unproved.

F. What Lies Ahead

In North Carolina, a trial is in the offing - probably in the fall of 1999 - to determine the legality of the redistricting plan enacted in 1997. The plaintiffs will contend - as they have from the outset - that circumstantial evidence fully demonstrates the predominantly race-based motive for the creation of the First and Twelfth Districts. As to the First, plaintiffs will argue that it is impossible to create a geographically majority-black district in North Carolina.⁽¹⁸⁾ Therefore, the circumstance that the First District is majority-black, when considered in connection with the District's splitting of many cities and counties - is a good indicator of a racial motive. In this instance, the motive to create a race-based district was based on an erroneous assumption that a majority-black geographically compact district could be created and the Justice Department's insistence on creating the district.

With respect to the Twelfth District, the issue now appears to be whether a racial or political motive predominated in the District's creation. Because in North Carolina over 95% of African-American registered voters both register and vote as Democrats, the difficulty in determining motive is increased. Obviously, the defendants hope to take advantage of that difficulty. The plaintiffs will rely principally on the shape and demographics of the District to establish that it is a racial gerrymander; but they also expect to present some additional evidence to prove the race-based motive.

Only one more election will occur before the next census requires drawing new districts for North Carolina - one of the nation's most rapidly growing states. Why then is it worth the trouble of having another trial?⁽¹⁹⁾ For one thing, four elections under unconstitutional plans are enough. Citizen confidence in the electoral process requires that racial gerrymandering in North Carolina be brought to an end without further delay. Secondly, unless attacked successfully at this time, there is the risk that the current plan will form the baseline for post-census plans. The Supreme Court has ruled that in drawing a new plan a legislature should not rely on an earlier unconstitutional plan. Invalidating the present unconstitutional plan gives greater assurance that this plan will not be used - whether openly or sub rosa - to draw congressional districts for the next decade.

The North Carolina litigation may finally dispose of several issues. For example, when the legislature was drawing its 1997 plan, it was informed by the Chair of the Senate Redistricting Committee of his understanding that Shaw applied only to majority-minority districts. This information seems at odds with the logic of Shaw v. Reno; and in its appeal to the Supreme Court in Hunt v. Cromartie, the State did not put forward such a contention. The failure of any of the Justices to even mention such a contention in the Hunt v. Cromartie opinions strongly suggests that Shaw is not limited to majority-minority districts; nor is there any reason in Equal Protection jurisprudence that it should be limited in this manner.

In Hunt v. Cromartie, the plaintiffs have urged that for remedial districts - namely, districts created to replace racially gerrymandered districts - the legislature must eliminate all "vestiges" of the gerrymander.⁽²⁰⁾ This argument was not discussed in Hunt v. Cromartie. Likewise, the Court did not address the plaintiffs' contention that requiring them to prove that race was the legislature's "predominant motive" would impose on them an evidentiary burden greater than is called for by well-entrenched equal protection precedents like Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). Some have concluded that the failure of the Supreme Court to discuss these contentions in deciding Hunt v. Cromartie signifies their rejection. Plaintiffs respond that such issues were not directly before the Court and that no inference can be drawn from the failure to discuss. On the other hand, the failure of the Court even to mention the arguments by some of the amici that Shaw v. Reno should be overruled or severely limited does seem significant.

G. A Possible Solution

Opponents of racial gerrymandering have insisted that those gerrymanders defeat the purpose of having single-member electoral districts - rather than having all candidates run at large. Some opponents suggest that, instead of gerrymanders, multimember districts with proportional representation are the best solution. This, at least, would reduce the inconsistency of the present system, which attempts to impose a quota system on single-member districts.

To me a more attractive solution is the creation of independent Redistricting Commissions to perform redistricting without regard to race, party or incumbency. New Jersey and several other states already have redistricting commissions of some type. A bill to amend the North Carolina Constitution along these lines has been introduced in the State Senate. The Redistricting Commission, as proposed by this bill, would consist of nine persons - two appointed by the Chief Justice of the North Carolina Supreme Court "with no more than one affiliated with the same political party"; three appointed by the governor "with no more than two affiliated with the same political party"; two appointed by the Speaker of the House of Representatives "with no more than one affiliated with the same political party"; and two appointed by the President Pro Tempore of the Senate "with no more than one affiliated with the same political party." "No person may serve on the Commission who has held elective public office or been a candidate for elective public office in the four years prior to commencement of service" on the Commission and "[n]o person who has served as a member of the Independent Redistricting Commission shall be eligible to hold any elective public office for four years after termination of service." The districts created are to be "compact and contiguous." Of special significance is t he requirement that "[i]n preparing or adopting its plans, the Independent Redistricting Commission shall not consider the following information: (a) the political affiliation of voters; (b) Voting data from previous elections; (c) The location of incumbents' residences; or (d) Demographic data from sources other than the United States Bureau of the Census."

Under the bill introduced to the North Carolina Senate, the plans developed by the Independent Redistricting Commission take effect directly and do not require approval by the General Assembly. Another alternative would be to have the Commission's plan submitted to the legislature for an up or down vote without opportunity for modification - as has been done at the federal level in connection with plans for base closures developed by the Base Closure Commission. In any event, the Commission would be a step forward from the present system in which legislators choose the voters to be in their districts, rather than having the voters make the choice. Enhanced voter confidence would be generated.

I understand that both the League of Women Voters and Common Cause are supporting the bill that has been submitted in North Carolina. Despite this support, any such bill will encounter considerable opposition. Undoubtedly, legislators will be reluctant to establish such commissions because doing so implies that they cannot fairly and impartially draw electoral districts. Because of such reluctance, it will be difficult to get the General Assembly to allow a referendum by the voters on the desirability of creating an Independent Redistricting Commission. However, if the voters were allowed to vote on such a proposal, the chances of success seem great in light of voter cynicism about the present process and the resentment against gerrymanders, both political and racial, and against efforts to entrench incumbents.

In some states, such as California, the bottleneck of the legislature can be avoided by use of an initiative to place on the ballot a referendum for change in the state constitution. I hope - and even anticipate - that the initiative will be used as a means to give the voters an opportunity to vote on the creation of independent redistricting commissions. Perhaps in this way, a groundswell will be created that will assure that in the elections in the year 2002, the use of racial gerrymanders is minimized.

Conclusion

The road to the elimination of racial gerrymanders has been long indeed; however, I believe that it is important that this road be traveled to the end. Only then will the goal of Equal Protection in the electoral process be attained.

1. Although the Department of Justice under the Bush administration was not famous for its efforts in the field of affirmative action, as to redistricting it insisted on carrying affirmative action to an extreme. As a result, numerous contorted congressional districts popped up across the country. Some cynics have suggested that by "packing" blacks in some districts, the remaining districts were "bleached" and therefore were more likely to vote Republican.

2. Basically, the Democrats had outsmarted the Republican Department of Justice by adroitly using computer technology to link scattered predominantly black census blocks, to form two majority-black districts and at the same time gerrymander the remaining districts in a manner whereby Democratic candidates would do well there as well.

3. The Attorney General and the Assistant Attorney General for the Civil Rights Division at the time were sued on the theory that the Attorney General's refusal of preclearance for a plan with less than two majority-minority districts caused the gerrymander. As the case progressed and the Clinton Administration took office, Attorney General Janet Reno was substituted as a defendant and subsequently the case was decided by the Supreme Court under the title of Shaw v. Reno.

4. Of course, each of these two representatives would be a Democrat since 95% or more of the African-Americans in North Carolina are registered as Democrats.

5. See Shaw v. Barr, 808 F. Supp. 461 (1992), rev'd in part, 509 U.S. 630 (1992).

6. When jurisdiction was noted, various groups filed amicus briefs. Among others, the Republican National Committee filed in support of appellants; and the Democratic National Party with the NAACP and the ACLU filed amicus briefs on the appellees' behalf.

7. See oral argument in Shaw I, Tr. at 14, 22 ("[T]he North Carolina General Assembly intentionally created two majority-minority congressional districts." ... "There's no dispute here over what the state's purpose is. There's a dispute over how to characterize it legally, but we're not in a disagreement over what the state legislature was trying to do" (H. Jefferson Powell, on behalf of the state appellees)).

8. Because the five plaintiffs were white, the state defendants also contested the ruling of the three-judge district court that they had standing.

9. See Judgment in Shaw v. Hunt (No. 92-202-CIV-5-BR, filed July 31, 1996). Like most of the rulings of that court, it was by divided vote, with Judge Voorhees dissenting. Subsequently, the Shaw plaintiffs were unsuccessful in seeking a writ of mandamus from the Supreme Court to require the district court to adopt a remedial plan for the 1996 elections. In re Shaw et al., 518 U.S. 1045 (1996).

10. Moreover, unlike the 1992 plan, Durham County was not divided and was placed in a geographically compact District 4.

11. Until that time the Cromartie action had been pending before District Judge Malcolm Howard, and no three-judge panel had been designated. The panel for Daly had been designated previously.

12. See Cromartie v. Hunt, 118 S. Ct. 1510 (1998) (Stevens, Ginsburg, and Breyer, JJ., dissenting).

13. Heretofore, I have been criticized extensively for creating confusion as to congressional districts; and so, to me it seems somewhat ironic that the State, in this instance, generated potential confusion as to what plan will be used in the 2000 elections.

14. Justice Ginsberg was not on the Court at the time of Shaw v. Reno, although it appears very probable that she would have dissented in that case as well.

15. In the 1998 plan, the Twelfth District was only about 35% African-American in population, had only five counties - one of which was not split, and excluded Greensboro.

16. Governor Bush declined to call the Texas legislature into a special session to develop a new redistricting plan; and thereby he assured that the new plan would be drawn by the three-judge court which had invalidated the racially gerrymandered plan.

17. In Louisiana, Cleo Fields, an African-American, did not run for reelection. Instead, he ran for election as governor.

18. Strong evidence indicates that this is true whether the criterion used is majority of total population or instead is majority of voting age population.

19. Some have accused me of having an obsession with the redistricting issue. If an obsession with seeking compliance with the Constitution is a crime, I must plead guilty.

20. A precedent is provided by the cases requiring removal of all "vestiges" of racial segregation in the public schools. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Dayton Bd. of Educ v. Brinkman, 443 U.S. 526 (1979). A precedent is also provided by criminal procedure cases involving the "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471 (1963); Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979).