Bush v. Vera
Encyclopedia
Bush v. Vera, 517 U.S. 952
(1996), was a United States Supreme Court
case concerning racial gerrymandering
, where racial minority majority-electoral districts
were created during Texas
' 1990 redistricting
to increase minority Congressional
representation. The Supreme Court, in a plurality opinion, held that race was the predominant factor in the creation of the districts
and that under a strict scrutiny standard the three districts were not narrowly-tailored to further a compelling governmental interest.
decided to draw one new Hispanic-majority district in South Texas (District 28), one new African-American majority district in Dallas County
(District 30), and one new Hispanic-majority district in the Houston
area (District 29). In addition, the Legislature decided to reconfigure an existing minority-majority district in the Houston area (District 18) to increase its percentage of African-Americans. The Texas Legislature had developed a state-of-the-art computer system, RedApl, that allowed it to draw congressional districts using racial data at the census block level. Working closely with the Texas congressional delegation and various members of the Legislature who intended to run for Congress, the Texas Legislature took great care to draw three new districts and reconfigure districts that the chosen candidates could win.
The Justice Department precleared the plan under § 5 of the Voting Rights Act of 1965 and it was used in the 1992 election.
Plaintiffs Al Vera, Edward Blum, Polly Orcutt, Ken Powers, Barbara Thomas, and Ed Chen challenged 24 of the state's 30 congressional districts as racial gerrymanders. A three-judge panel of the federal district, consisting of United States Court of Appeals for the Fifth Circuit
Judge Edith H. Jones, United States District Judges Melinda Harmon
and David Hittner
, struck down three Districts (18, 29, and 30) but the decision was stayed pending appeal, so the plan continued in use for the 1994 general election.
, found that the plan was subject to strict scrutiny as it was an impermissable racial gerrymander. She repeated what the Court had said in Shaw v. Reno
and Miller v. Johnson
: Strict scrutiny applies where "redistricting legislation . . . is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles," or where "race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines," and "the legislature subordinated traditional race-neutral districting principles . . . to racial considerations,".
The Court again held that strict scrutiny does not apply merely because redistricting is performed with consciousness of race: that strict scrutiny does not apply in all cases of intentional creation of majority-minority districts, such as the compact districts created by a state court in California. But strict scrutiny does apply where race was the predominant factor in drawing district lines and traditional, race-neutral districting principles were subordinated to race. The Court found evidence that other factors, including incumbent protection, were considered.
The State argued, for example, that the bizarre shape of District 30 in Dallas County was explained by the drafters' desire to unite urban communities of interest and that the bizarre shape of all three districts was attributable to the Legislature's efforts to protect incumbents of old districts while designing the new ones. The Supreme Court upheld the district court's finding to the contrary, holding that race was the predominant factor, saying that "the contours of Congressional District 30 are unexplainable in terms other than race."
In applying strict scrutiny, the Court again assumed without deciding that complying with § 2 of the Voting Rights Act was a compelling state interest, but found that the districts were not narrowly tailored to comply with § 2 because all three districts were bizarrely shaped and far from compact as a result of racial manipulation. To the extent there was political manipulation, race was used as a proxy for political affiliation. It was race that predominated over all other factors.
Justice O'Connor further noted that: "[B]izarre shape and noncompactness cause constitutional harm insofar as they convey the message that political identity is, or should be, predominantly racial. . . . [C]utting across pre-existing precinct lines and other natural or traditional divisions, is not merely evidentially significant; it is part of the constitutional problem insofar as it disrupts nonracial bases of identity and thus intensifies the emphasis on race."
The court pointed out that, if the minority population is not sufficiently compact to draw a compact district, there is no violation of § 2; if the minority population is sufficiently compact to draw a compact district, nothing in § 2 requires the creation of a race-based district that is far from compact.
A § 2 district that is reasonably compact and regular, taking into account traditional districting principles such as maintaining communities of interest and traditional boundaries, may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless "beauty contests."
The Court found that the district lines were not justified as an attempt to remedy the effects of past discrimination, since there was no evidence of present discrimination other than racially polarized voting. Since racially polarized voting only served to make a case for a violation of § 2, and the plan was not narrowly tailored to remedy a § 2 violation, the bizarre shapes were not justified.
The Court found that creation of District 18, the reconfigured African-American district in the Houston area, was not justified as an attempt to avoid retrogression under § 5, since it actually increased the African-American voting population from 40.8 percent to 50.9 percent.
Justice Anthony Kennedy
, who joined in the plurality opinion, wrote separately to express his view that anytime a district is drawn with a pre-ordained racial composition that strict scrutiny would apply.
Justice Clarence Thomas
issued a concurring opinion in which Justice Antonin Scalia
joined which stated that "Strict scrutiny applies to all governmental classifications based on race, and we have expressly held that there is no exception for race based redistricting."
in which Justices Ruth Bader Ginsburg
and Stephen Breyer
and one by Justice David Souter
, in which Ginsburg and Breyer also joined.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1996), was a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case concerning racial gerrymandering
Gerrymandering
In the process of setting electoral districts, gerrymandering is a practice that attempts to establish a political advantage for a particular party or group by manipulating geographic boundaries to create partisan, incumbent-protected districts...
, where racial minority majority-electoral districts
Majority-minority district
A majority-minority district is a United States congressional district in which the majority of the constituents in the district are racial or ethnic minorities . Whether a district is majority-minority is usually decided by United States Census data.Majority-minority districts are often the result...
were created during Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
' 1990 redistricting
Redistricting
Redistricting is the process of drawing United States electoral district boundaries, often in response to population changes determined by the results of the decennial census. In 36 states, the state legislature has primary responsibility for creating a redistricting plan, in many cases subject to...
to increase minority Congressional
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
representation. The Supreme Court, in a plurality opinion, held that race was the predominant factor in the creation of the districts
Electoral district
An electoral district is a distinct territorial subdivision for holding a separate election for one or more seats in a legislative body...
and that under a strict scrutiny standard the three districts were not narrowly-tailored to further a compelling governmental interest.
Background
As a result of the 1990 United States Census, Texas was entitled to three additional congressional districts. In a called session in 1991, the Texas LegislatureTexas Legislature
The Legislature of the state of Texas is the state legislature of the U.S. state of Texas. The legislature is a bicameral body composed of a 31-member Senate and a 150-member House of Representatives. The Legislature meets at the Capitol in Austin...
decided to draw one new Hispanic-majority district in South Texas (District 28), one new African-American majority district in Dallas County
Dallas County, Texas
As of the census of 2000, there were 2,218,899 people, 807,621 households, and 533,837 families residing in the county. The population density was 2,523 people per square mile . There were 854,119 housing units at an average density of 971/sq mi...
(District 30), and one new Hispanic-majority district in the Houston
Houston, Texas
Houston is the fourth-largest city in the United States, and the largest city in the state of Texas. According to the 2010 U.S. Census, the city had a population of 2.1 million people within an area of . Houston is the seat of Harris County and the economic center of , which is the ...
area (District 29). In addition, the Legislature decided to reconfigure an existing minority-majority district in the Houston area (District 18) to increase its percentage of African-Americans. The Texas Legislature had developed a state-of-the-art computer system, RedApl, that allowed it to draw congressional districts using racial data at the census block level. Working closely with the Texas congressional delegation and various members of the Legislature who intended to run for Congress, the Texas Legislature took great care to draw three new districts and reconfigure districts that the chosen candidates could win.
The Justice Department precleared the plan under § 5 of the Voting Rights Act of 1965 and it was used in the 1992 election.
Plaintiffs Al Vera, Edward Blum, Polly Orcutt, Ken Powers, Barbara Thomas, and Ed Chen challenged 24 of the state's 30 congressional districts as racial gerrymanders. A three-judge panel of the federal district, consisting of United States Court of Appeals for the Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
Judge Edith H. Jones, United States District Judges Melinda Harmon
Melinda Harmon
U.S. District Court Judge Melinda Harmon was lead judge in the subsequently overruled Arthur Andersen trial. Civil lawsuits against Enron were consolidated in her court; she oversaw class action lawsuits on behalf of both Enron shareholders and its employees....
and David Hittner
David Hittner
David Hittner is a United States federal judge.Born in Schenectady, New York, Hittner is an Eagle Scout. He received a B.S. from New York University in 1961 and a J.D. from New York University School of Law in 1964. He was in the United States Army Captain from 1965 to 1966. He was in private...
, struck down three Districts (18, 29, and 30) but the decision was stayed pending appeal, so the plan continued in use for the 1994 general election.
The U.S. Supreme Court ruling
The Court, in a plurality opinion written by Justice Sandra Day O'ConnorSandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
, found that the plan was subject to strict scrutiny as it was an impermissable racial gerrymander. She repeated what the Court had said in Shaw v. Reno
Shaw v. Reno
Shaw v. Reno, 509 U.S. 630 , was a United States Supreme Court case argued on April 20, 1993. The ruling was significant in the area of redistricting and racial gerrymandering. The court ruled in a 5-4 decision that redistricting based on race must be held to a standard of strict scrutiny under the...
and Miller v. Johnson
Miller v. Johnson
Miller v. Johnson, 515 U.S. 900 , was a United States Supreme Court case concerning "affirmative gerrymandering/racial gerrymandering", where racial minority majority electoral districts are created during redistricting to increase minority Congressional representation.The case was brought to court...
: Strict scrutiny applies where "redistricting legislation . . . is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles," or where "race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines," and "the legislature subordinated traditional race-neutral districting principles . . . to racial considerations,".
The Court again held that strict scrutiny does not apply merely because redistricting is performed with consciousness of race: that strict scrutiny does not apply in all cases of intentional creation of majority-minority districts, such as the compact districts created by a state court in California. But strict scrutiny does apply where race was the predominant factor in drawing district lines and traditional, race-neutral districting principles were subordinated to race. The Court found evidence that other factors, including incumbent protection, were considered.
The State argued, for example, that the bizarre shape of District 30 in Dallas County was explained by the drafters' desire to unite urban communities of interest and that the bizarre shape of all three districts was attributable to the Legislature's efforts to protect incumbents of old districts while designing the new ones. The Supreme Court upheld the district court's finding to the contrary, holding that race was the predominant factor, saying that "the contours of Congressional District 30 are unexplainable in terms other than race."
In applying strict scrutiny, the Court again assumed without deciding that complying with § 2 of the Voting Rights Act was a compelling state interest, but found that the districts were not narrowly tailored to comply with § 2 because all three districts were bizarrely shaped and far from compact as a result of racial manipulation. To the extent there was political manipulation, race was used as a proxy for political affiliation. It was race that predominated over all other factors.
Justice O'Connor further noted that: "[B]izarre shape and noncompactness cause constitutional harm insofar as they convey the message that political identity is, or should be, predominantly racial. . . . [C]utting across pre-existing precinct lines and other natural or traditional divisions, is not merely evidentially significant; it is part of the constitutional problem insofar as it disrupts nonracial bases of identity and thus intensifies the emphasis on race."
The court pointed out that, if the minority population is not sufficiently compact to draw a compact district, there is no violation of § 2; if the minority population is sufficiently compact to draw a compact district, nothing in § 2 requires the creation of a race-based district that is far from compact.
A § 2 district that is reasonably compact and regular, taking into account traditional districting principles such as maintaining communities of interest and traditional boundaries, may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless "beauty contests."
The Court found that the district lines were not justified as an attempt to remedy the effects of past discrimination, since there was no evidence of present discrimination other than racially polarized voting. Since racially polarized voting only served to make a case for a violation of § 2, and the plan was not narrowly tailored to remedy a § 2 violation, the bizarre shapes were not justified.
The Court found that creation of District 18, the reconfigured African-American district in the Houston area, was not justified as an attempt to avoid retrogression under § 5, since it actually increased the African-American voting population from 40.8 percent to 50.9 percent.
Concurrences
In an unusual move, Justice O'Connor wrote a concurrence to her own opinion in which she expressed her view on two points: first, compliance with the results test of §2 of the Voting Rights Act is a compelling state interest, and second, that the test can co-exist in principle and in practice with Shaw v. Reno and its progeny.Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, who joined in the plurality opinion, wrote separately to express his view that anytime a district is drawn with a pre-ordained racial composition that strict scrutiny would apply.
Justice Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
issued a concurring opinion in which Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
joined which stated that "Strict scrutiny applies to all governmental classifications based on race, and we have expressly held that there is no exception for race based redistricting."
Dissents
There were two dissents filed in this case, one by Justice John Paul StevensJohn Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
in which Justices Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
and Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
and one by Justice David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, in which Ginsburg and Breyer also joined.
See also
- List of United States Supreme Court cases, volume 517
- List of United States Supreme Court cases
- Lists of United States Supreme Court cases by volume
- List of United States Supreme Court cases by the Rehnquist Court