1. Shaw v Reno

2. Background…
Voting rights act had been passed with “pre-clearance” requirement
Applied to the re-drawing of district boundaries
Can’t discriminate on basis of race
Thornburg v Gingles (1986): If voting is racially polarized and there is a BIG minority group that is compact (they all live near each other) – when a new district is created – the Voting Rights Act REQUIRES the district be drawn to comprise a majority of minority voters (a majority-minority district.)
Court concluded this is necessary to give minority groups “the opportunity to elect their candidate of choice.”

3. Facts:
Between 1865 – 1993 NC elected a total of 7 blacks to the House and in 1990 of the 11 Reps – none were black
20% of NC was black
After the census of 1990 – NC gained a Congressional District (WHY??)
40 of NC counties required pre-clearance so the new district map would require Federal approval
DOJ said – dudes – why only 1minority-majority district? There should be 2
So they drew a 2nd one and it looked like this:

4. 160 miles long, broke up counties, towns and districts to connect geographically. Densely populated by minority voters. DOJ accepted and a black Rep was elected.

5. So what’s the problem
Did the North Carolina residents’ claim that the 1990 redistricting plan discriminated on the basis of race raise a valid constitutional issue under the 14th Amendment’s Equal Protection Clause?
Ummmm, they elected a black dude – what’s up?
Think about it for a minute…

6. Ohhhh…ok
14th Amendment: “Nor shall any state…deny to any person within its jurisdiction the equal protection of the laws.”
15th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by and State on account of race, color, or previous condition of servitude.”

7. Precedents:
Gomillion v Lightfoot (1960): In 1957 Alabama redrew a district in an odd way resulting in all but 4 or 5 blacks voters out of the district. No white voters were impacted. The Court said the 15th Amendment COULD be used to invalidate districts that are drawn to abridge the right to vote on the basis of race.
United Jewish Organizations of Williamsburg, Inc. v Carey (1977): An Hasidic Jewish Community was divided between 2 districts in NY. Many districts were redrawn to achieve a 65% non-white ratio in every district. Court said this DID NOT violate 14th or 15th Amendments because it did not “fence out” white populations. Whites were NOT underrepresented relative to their percentage of the population.

8. Tough call – could go either way
What do you think?
Constitutional: Door side
Unconstitutional: Window side

9. For Shaw (Window people)
Constitution is “color blind”. This is the opposite of that
This district is not compact or contiguous
Gomillion says dividing voters into districts on the basis of race is impermissible. It doesn’t matter that race is being used to ADVANCE the cause of a minority
Drawing districts to capture all the minorities in it is racist as well. Not all black voters are the same, nor do they have a unified “candidate of choice.”

10. For Reno (door people)
Courts have ruled that race in redistricting is permissible and might be more important than compactness or contiguousness
Odd shapes might be needed to elect representative who reflect the people of the state
Voting Rights Act encourages creation of minority-majority district especially in areas where there has been historic discrimination. (Looking at you North Carolina)
Gomillion says you can’t draw lines that discriminate against a minority. It says nothing about drawing them to benefit a minority
And United Jewish case the Court found that even though whites had lost 1 seat, overall they were not deprived of effective representation or the right to vote

11. Shaw
Ruling 5 – 4
Classifications of citizens predominantly on the basis of race are undesirable in a free society and conflict with the American political value of equality
Racial classifications of any sort promotes the belief that individuals should be judged by the color of their skin.
Drawing districts to advance the “perceived” interests of one racial group may lead elected officials to believe that is who they represent and not consider their constituency as a whole.
Racial gerrymandering, even for remediation, could “balkanize” us instead of moving forward toward the goal of a political system where race no longer matters.

12. Dissents
Consideration of race is inevitable and does not violate the Constitution unless the party challenging a district shows that the district was drawn in a way that deprives a racial group of equal opportunity to participate in the political process.
Race-conscious gerrymandering only violated the Equal Protection Clause if the purpose of the boundaries is to enhance the power of the group in control of the process at the expense of minority voters.

13. So what the heck is the precedent then?
Redistricting cannot be solely about race
If all you are doing is considering divisions for racial purposes – then voters can challenge that using the 14th Amendment’s Equal Protection Clause
The case was sent back to the District Court to see if NC could justify the plan in terms of anything but race.
So how is this working out? A new case in NC over the same thing was heard in Sooooo….not great
Political versus racial motivation gets harder to discern because states are allowed to draw district boundaries for political reasons, and there is a high correlation between minority voters and Democratic votes.