Shaw Vs. Reno and the World of Redistricting and Representation
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DIVISION OF THE HUMANITIES AND SOCIAL SCIENCES CALIFORNIA INSTITUTE OF TECHNOLOGY PASADENA, CALIFORNIA 91125 SHAW V. RENO AND THE REAL WORLD OF REDISTRICTING AND REPRESENTATION J. Morgan Kousser :$' � a: 0 1891 I.I- -:>� v SOCIAL SCIENCE WORKING PAPER 915 February 1995 SHAW V. RENO AND THE REAL WORLD OF REDISTRICTING AND REPRESENTATION J. Morgan Kousser Abstract Justice O'Connor's majority opinion in the 1993 U.S. Supreme Court case of Shaw v. Reno has widely been seen as withdrawing judicial protection of minority voting rights -- a welcome development to those who believe as a matter of faith that discriminatory electoral rules, racist appeals in elections, and racially polarized voting are things of the distant past, but less hopeful to close students of redistricting and election campaigns of the last two decades. Deeply ambiguous, the opinion has spawned a wide range of interpretations, from assertions that it bans redistricters from taking the race of voters into account at all, even when they place them in majority-white districts, to contentions that il merely asks for further information about the basis for establishing certain "ugly" districts that have majorities of African Americans or Latinos. In Lhis paper, which is based on research that I carried out for Shaw v. Hunt, the remand version of Shaw v. Reno, and Vera v. Richards , its Texas counterpart, I try to restore a sense of re ality to the often factually incorrect assertions or implications of Justice O'Connor's opinion, not only by a close textual reading of the briefs and opinions in the Supreme Court case, but also by looking in considerable detail at the actual redistricting processes in North Carolina and Texas during the 1970s, 80s, and 90s. Were race, partisanship, and individual politicians' interests taken into account in redrawing districts before 1991, or were all previous reapportionments pristine exercises in civic virtue? Might the states in the 1990s have had compelling interests in redressing past racially discriminatory practices? Were the motives of the 1991-92 redistrictings so uncomplicated that they can be easily and unambiguously determined by a quick glance at a map? For North Carolina, I also examine whether white and black public opinion and the voting records of white and black members of Congress differ systematically from each other. Do black voters need black faces to represent them? Shaw's vagueness affords the Supreme Court the possibility of gracefully backing away from its separate but unequal standards, standards that allow whites standing lo sue without having lo prove that the electoral rules al issue have a racially discriminatory effect and without having to show in detail that they were adopted with a racially discriminatory intent. In the final section, I outline five escape routes from Shaw, all of which are based on ils factual inadequacies. TABLE OF CONTENTS Section and Subsection Page I. Introduction 1 II. A Hannless Suit A Shaw Barred 5 B. An Appealing Fantasy 7 C. "Classifications of Citizens Solely on the Basis of Race" 1. "A New Cause of Action" 12 2. Three Stages in Drawing a Minority Opportunity District 16 3. Why "Racial Gerrymandering" Hanns Society: Shaw's Contradictions 18 4. Unsettled and Unsettling Issues: Shaw's Ambiguities 21 a. Before Strict Scrutiny 21 b. After StrictScrutiny 26 III. A Short History of Race, Representation, and Redistricting in North Carolina A How Well Do Whites Represem Blacks in North Carolina? 1. Congressional Roll Call Behavior 30 2. Attitudes of the Electorate 33 B. Discriminatory Districting and Electoral Practices before 1991 1. The "Black Second," 1872-1901 36 2. Racial Suppression, 1900-68 37 3. Clayton and Lee Run for Congress 38 4. The 1981 Redistricting: Fountain's Fishhook 39 5. Removing the Fishhook 45 6. Michaux, Valentine, and the "Bloc Vote" 48 7. Polarized Encore: Valentine Beats Another Black Candidate 51 8. The Record on the Eve of the Reapportionment of the 1990s 53 C. Redistricting in the 1990's: A Partisan Circus 1. A Changed Context 55 2. Partisan Warfare 56 3. Communities of Interest and Power 57 4. A Partisan Scorecard 62 5. Intention in 1991-92 64 IV. Partisanship, Ideology, and Race in the Redistricting of Texas, 1971-1991 A. Texas - The Biggest Political Thicket 65 B. Redistricting in Texas Before 1971 66 C. The 1970s: Controversy, Corruption, and Court-Ordered Reform 1. 1971: Mutscher's Melodrama 67 2. Judicial Epilogue 69 D. The 1980s: Partisanship, Ideology, and Influence 1. The Changed Political Context 70 2. The First Battle of Dallas 72 3. South of Houston 77 4. Did Minorities Influence the 1981 Redistricting? 79 5. The Conservative Attack on Minority Voters' Influence over Members of Congress 80 6. Review and Preparation for a Rerun 82 E. 1991: The Sequel 1. Circumstances Changed, Lessons Learned 83 2. The Second Battle of Dallas 85 3. Republicans and "·Fairness" 89 4. The Houston "Hispanic District" 93 5. A District of His Own 96 6. Race-Consciousness and the Process of Redistricting in Texas in 1991 97 7. Only Race? 108 V. Restoring Reality to Redistricting Litigation 109 SHAW V. RENO AND THE REAL WORLD OF REDISTRICTING AND REPRESENTATION I. INTRODUCTION Justice Sandra Day O'Connor's majority opinion in Shaw v. Reno' has widely been seen as a radical depanure from precedents, an indication that strengthening minority voting rights is no longer the only achievement of the Second Reconstruction safe from congressional or judicial attack.2 It is true that the abstract, deeply ambiguous, and often unreflective opinion suggested only vague and unworkable standards that have led to much-heightened judicial intrusion into the political process,3 and that it encouraged a cruelly ironic interpretation of the Founeenth and Fifteenth Amendments, an interpretation surely unintended by their framers, that aims to undermine the sharpest minority gains in politics since the First Reconstruction. In this paper, however, I will argue that the fears of liberals and the hopes of opponents of the voting rights revolution have been exaggerated. Many of the problems of the Shaw opinion stem from the inadequate factual and legal record before the Coun in 1993, panicularly from its depanure from the reality of redistricting and representation, past and present.4 The way to avoid the extreme consequences that have sometimes been predicted to flow from Shaw is to restore a dose of that reality. That restored, Shaw's apparent separate and unequal 1113 S.CL 2816 (1993). 2Laughlin McDonald, "Voting Rights and the Court: Drawing the Lines," 15 Southern Changes 1 (Fall, 1993); T. Alexander Aleinikoff and Samuel Issacharoff, "Race and Redistricting: Drawing Constitutional Lines AfterShaw v. Reno," 92 Mich. LR. 588 (1993); Kimberley V. Mann, "Shaw v. Reno: A Grim Foreboding for Minority Voting Rights," 5 Md. JI. of Contemp. Legal Issues 147 (1993-94); Pamela S. Karlan, "End of the Second Reconstruction?" The Nation (May 23, 1994), 698-700; A. Leon Higginbotham, Gregory A. Clarick, and Marcella David, "Shaw v. Reno: A Mirage of Good Intentions With Devastating Racial Consequences," 62 Fordham l.R. 1593 (1994); Jonathan M. Sperling, "Equal Protection and Race-Conscious Reapportionment: Shaw v. Reno," 17 Harvard J. Law & Public Policy 283 (1994); Anthony Q. Fletcher, "Recent Development," 29 Harvard CR-Cl l.R. 231 (1994). 3Shaw has also damaged an administrative procedure, oversight by the Deparunent of Justice under Section 5 of the Voting Rights Act, that, along with private litigation, has been working rather smoothly to foster the rights of discrete and insular minorities, has been reasonably free of partisanship, and has become, over the years, quite efficient. See Drew S. Days III, "Section 5 and the Role of the Justice Deparunent," in Bernard Grofman and Chandler Davidson, eds., Controversies in Minority Voting: The Voting Rights Act in Perspective (Washington: Brookings Institution, 1992), at 52-65_.. Conservative judicial. activism, in this instance, is poor administration, needlessly expensive and time-consuming. 4Cf. Aleinikoff and lssacharoff, supra, n.2, at 612. 1 standard, a standard that gives whites rights that blacks and browns5 do not equally enjoy, may fairly easily be reconsidered and the issue of race and redistricting may be folded back again into the main line of vote dilution cases. After offering an interpretation of O'Connor's opinion in Section II, I will tum in Sections III and IV to the recent history of redistricting in North Carolina and Texas, drawing on my research for the NAACP Legal Defense and Education Fund in the remand case of Shaw v. Hunt6 and for the U.S. Department of Justice in the analogous Texas case, Vera v. Richards.1 This excursion into political reality has three purposes. The first is to test the validity of what economists would call the "stylized facts" that undergird O'Connor's opinion: The Justice seems to assume that the beliefs and opinions of African-Americans are generally the same as those of whites, or if not, that white members of Congress from districts with large proportions of blacks so closely represent black attitudes that there is no need for black representation. If black and white attitudes are indistinguishable, or if white members of Congress, or at least white Democrats vote in the same way that black members of Congress do, then enabling black voters to elect candidates of their choice has merely symbolic importance. Black interests would not be different from white interests or at least they would not need to be represented by black faces, in the words of a recent book title by a conservative political scientist.8 A second stylized fact alleged by the North Carolina and Texas plaintiffs is that voting is no longer racially polarized, that whites in these states freely and quite frequently cast ballots forblack candidates when they are adequately funded and qualified, and that campaigns are not marred by racial appeals.9 If experience shows that the political system was not previously biased against blacks in the 5The conventions on racial designations are in flux.