Bartlett v. Strickland, 556 U. S. ____ (2009)

[هيثم الفقى]

[align=left]
C

Our holding that §2 does not require crossover districts does not consider the permissibility of such districts as a matter of legislative choice or discretion. Assuming a majority-minority district with a substantial minority population, a legislative determination, based on proper factors, to create two crossover districts may serve to diminish the significance and influence of race by encouraging minority and majority voters to work together toward a common goal. The option to draw such districts gives legislatures a choice that can lead to less racial isolation, not more. And as the Court has noted in the context of §5 of the Voting Rights Act, “various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or [crossover] districts.” Ashcroft, 539 U. S., at 482. Much like §5, §2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. See id., at 480–483. When we address the mandate of §2, however, we must note it is not concerned with maximizing minority voting strength, De Grandy, 512 U. S., at 1022; and, as a statutory matter, §2 does not mandate creating or preserving crossover districts.

Our holding also should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See Miller v. Johnson, supra; Shaw v. Reno, supra. States that wish to draw crossover districts are free to do so where no other prohibition exists. Majority-minority districts are only required if all three Gingles factors are met and if §2 applies based on a totality of the circumstances. In areas with substantial crossover voting it is unlikely that the plaintiffs would be able to establish the third Gingles precondition—bloc voting by majority voters. See supra, at 11. In those areas majority-minority districts would not be required in the first place; and in the exercise of lawful discretion States could draw crossover districts as they deemed appropriate. See Pildes 1567 (“Districts could still be designed in such places that encouraged coalitions across racial lines, but these districts would result from legislative choice, not … obligation”). States can—and in proper cases should—defend against alleged §2 violations by pointing to crossover voting patterns and to effective crossover districts. Those can be evidence, for example, of diminished bloc voting under the third Gingles factor or of equal political opportunity under the §2 totality-of-the-circumstances analysis. And if there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendment s. See Reno v. Bossier Parish School Bd., 520 U. S. 471, 481–482 (1997) ; Brief for United States as Amicus Curiae 13–14. There is no evidence of discriminatory intent in this case, however. Our holding recognizes only that there is no support for the claim that §2can require the creation of crossover districts in the firstinstance.

Petitioners claim the majority-minority rule is inconsistent with §5, but we rejected a similar argument in LULAC, 548 U. S., at 446 (opinion of Kennedy, J.). The inquiries under §§2 and 5 are different. Section 2 concerns minority groups’ opportunity “to elect representatives of their choice,” 42 U. S. C. §1973(b) (2000 ed.), while the more stringent §5 asks whether a change has the purpose or effect of “denying or abridging the right to vote,” §1973c. See LULAC, supra, at 446; Bossier Parish, supra, at 476–480. In LULAC, we held that although the presence of influence districts is relevant for the §5 retrogression analysis, “the lack of such districts cannot establish a §2 violation.” 548 U. S., at 446 (opinion of Kennedy, J.); see also Ashcroft, 539 U. S., at 482–483. The same analysis applies for crossover districts: Section 5 “leaves room” for States to employ crossover districts, id., at 483, but §2 does not require them.

IV

Some commentators suggest that racially polarized voting is waning—as evidenced by, for example, the election of minority candidates where a majority of voters are white. See Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L. Rev. 2208, 2209 (2003); see also id., at 2216–2222; Pildes 1529–1539; Bullock & Dunn, The Demise of Racial Districting and the Future of Black Representation, 48 Emory L. J. 1209 (1999). Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and §2 must be interpreted to ensure that continued progress.

It would be an irony, however, if §2 were interpreted to entrench racial differences by expanding a “statute meant to hasten the waning of racism in American politics.” De Grandy, supra, at 1020. Crossover districts are, by definition, the result of white voters joining forces with minority voters to elect their preferred candidate. The Voting Rights Act was passed to foster this cooperation. We decline now to expand the reaches of §2 to require, by force of law, the voluntary cooperation our society has achieved. Only when a geographically compact group of minority voters could form a majority in a single-member district has the first Gingles requirement been met.

The judgment of the Supreme Court of North Carolina is affirmed.

It is so ordered.

556 U. S. ____ (2009)

SUPREME COURT OF THE UNITED STATES

GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
et al., PETITIONERS v. DWIGHT
STRICKLAND et al.
on writ of certiorari to the supreme court of north carolina
[March 9, 2009]

Justice Thomas, with whom Justice Scalia joins, concurring in the judgment.

I continue to adhere to the views expressed in my opinion in Holder v. Hall, 512 U. S. 874, 891 (1994) (opinion concurring in judgment). The text of §2 of the Voting Rights Act of 1965 does not authorize any vote dilution claim, regardless of the size of the minority population in a given district. See 42 U. S. C. §1973(a) (2000 ed.) (permitting only a challenge to a “voting qualification or prerequisite to voting or standard, practice, or procedure”); see also Holder, supra, at 893 (stating that the terms “ ‘standard, practice, or procedure’ ” “reach only state enactments that limit citizens’ access to the ballot”). I continue to disagree, therefore, with the framework set forth in Thornburg v. Gingles, 478 U. S. 30 (1986) , for analyzing vote dilution claims because it has no basis in the text of §2. I would not evaluate any Voting Rights Act claim under a test that “has produced such a disastrous misadventure in judicial policymaking.” Holder, supra, at 893. For these reasons, I concur only in the judgment.

Souter, J., dissenting

SUPREME COURT OF THE UNITED STATES

GARY BARTLETT, EXECUTIVE DIRECTOR OF THE
NORTH CAROLINA STATE BOARD OF ELECTIONS,
et al., PETITIONERS v. DWIGHT
STRICKLAND et al.
on writ of certiorari to the supreme court of north carolina
[March 9, 2009]

Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

The question in this case is whether a minority with under 50% of the voting population of a proposed voting district can ever qualify under §2 of the Voting Rights Act of 1965 (VRA) as residents of a putative district whose minority voters would have an opportunity “to elect representatives of their choice.” 42 U. S. C. §1973(b) (2000 ed.). If the answer is no, minority voters in such a district will have no right to claim relief under §2 from a statewide districting scheme that dilutes minority voting rights. I would hold that the answer in law as well as in fact is sometimes yes: a district may be a minority-opportunity district so long as a cohesive minority population is large enough to elect its chosen candidate when combined with a reliable number of crossover voters from an otherwise polarized majority.

In the plurality’s view, only a district with a minority population making up 50% or more of the citizen voting age population (CVAP) can provide a remedy to minority voters lacking an opportunity “to elect representatives of their choice.” This is incorrect as a factual matter if the statutory phrase is given its natural meaning; minority voters in districts with minority populations under 50% routinely “elect representatives of their choice.” The effects of the plurality’s unwillingness to face this fact are disturbing by any measure and flatly at odds with the obvious purpose of the Act. If districts with minority populations under 50% can never count as minority-opportunity districts to remedy a violation of the States’ obligation to provide equal electoral opportunity under §2, States will be required under the plurality’s rule to pack black voters into additional majority-minority districts, contracting the number of districts where racial minorities are having success in transcending racial divisions in securing their preferred representation. The object of the Voting Rights Act will now be promoting racial blocs, and the role of race in districting decisions as a proxy for political identification will be heightened by any measure.

I

Recalling the basic premises of vote-dilution claims under §2 will show just how far astray the plurality has gone. Section 2 of the VRA prohibits districting practices that “resul[t] in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” 42 U. S. C. §1973(a). A denial or abridgment is established if, “based on the totality of circumstances,” it is shown that members of a racial minority “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” §1973(b).

Since §2 was amended in 1982, 96 Stat. 134, we have read it to prohibit practices that result in “vote dilution,” see Thornburg v. Gingles, 478 U. S. 30 (1986) , understood as distributing politically cohesive minority voters through voting districts in ways that reduce their potential strength. See id., at 47–48. There are two classic patterns. Where voting is racially polarized, a districting plan can systemically discount the minority vote either “by the dispersal of blacks into districts in which they constitute an ineffective minority of voters” or from “the concentration of blacks into districts where they constitute an excessive majority,” so as to eliminate their influence in neighboring districts. Id., at 46, n. 11. Treating dilution as a remediable harm recognizes that §2 protects not merely the right of minority voters to put ballots in a box, but to claim a fair number of districts in which their votes can be effective. See id., at 47.

Three points follow. First, to speak of a fair chance to get the representation desired, there must be an identifiable baseline for measuring a group’s voting strength. Id., at 88 (O’Connor, J., concurring in judgment) (“In order to evaluate a claim that a particular multimember district or single-member district has diluted the minority group’s voting strength to a degree that violates §2, … it is … necessary to construct a measure of ‘undiluted’ minority voting strength”). Several baselines can be imagined; one could, for example, compare a minority’s voting strength under a particular districting plan with the maximum strength possible under any alternative.1 Not surprisingly, we have conclusively rejected this approach; the VRA was passed to guarantee minority voters a fair game, not a killing. See Johnson v. De Grandy, 512 U. S. 997, 1016–1017 (1994) . We have held that the better baseline for measuring opportunity to elect under §2, although not dispositive, is the minority’s rough proportion of the relevant population. Id., at 1013–1023. Thus, in assessing §2 claims under a totality of the circumstances, including the facts of history and geography, the starting point is a comparison of the number of districts where minority voters can elect their chosen candidate with the group’s population percentage. Ibid; see also League of United Latin American Citizens v. Perry, 548 U. S. 399, 436 (2006) (LULAC) (“We proceed now to the totality of the circumstances, and first to the proportionality inquiry, comparing the percentage of total districts that are [minority] opportunity districts with the [minority] share of the citizen voting-age population”).2

Second, the significance of proportionality means that a §2 claim must be assessed by looking at the overall effect of a multidistrict plan. A State with one congressional seat cannot dilute a minority’s congressional vote, and only the systemic submergence of minority votes where a number of single-member districts could be drawn can be treated as harm under §2. So a §2 complaint must look to an entire districting plan (normally, statewide), alleging that the challenged plan creates an insufficient number of minority-opportunity districts in the territory as a whole. See id., at 436–437.

Third, while a §2 violation ultimately results from the dilutive effect of a districting plan as a whole, a §2 plaintiff must also be able to place himself in a reasonably compact district that could have been drawn to improve upon the plan actually selected. See, e.g., De Grandy, supra, at 1001–1002. That is, a plaintiff must show both an overall deficiency and a personal injury open to redress.

Our first essay at understanding these features of statutory vote dilution was Thornburg v. Gingles, which asked whether a multimember district plan for choosing representatives by at-large voting deprived minority voters of an equal opportunity to elect their preferred candidates. In answering, we set three now-familiar conditions that a §2 claim must meet at the threshold before a court will analyze it under the totality of circumstances:

“First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district… . Second, the minority group must be able to show that it is politically cohesive… . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.” 478 U. S., at 50–51.

As we have emphasized over and over, the Gingles conditionsdo not state the ultimate standard under §2, nor could they, since the totality of the circumstances standard has been set explicitly by Congress. See LULAC, supra, at 425–426; De Grandy, supra, at 1011. Instead, each condition serves as a gatekeeper, ensuring that a plaintiff who proceeds to plenary review has a real chance to show a redressable violation of the ultimate §2 standard. The third condition, majority racial bloc voting, is necessary to establish the premise of vote-dilution claims: that the minority as a whole is placed at a disadvantage owing to race, not the happenstance of independent politics. Gingles, 478 U. S., at 51. The second, minority cohesion, is there to show that minority voters will vote together to elect a distinct representative of choice. Ibid. And the first, a large and geographically compact minority population, is the condition for demonstrating that a dilutive plan injures the §2 plaintiffs by failing to draw an available remedial district that would give them a chance to elect their chosen candidate. Growe v. Emison, 507 U. S. 25, 40–41 (1993) ; Gingles, supra, at 50.

II
Though this case arose under the Constitution of North Carolina, the dispositive issue is one of federal statutory law: whether a district with a minority population under 50%, but large enough to elect its chosen candidate with the help of majority voters disposed to support the minority favorite, can ever count as a district where minority voters have the opportunity “to elect representatives of their choice” for purposes of §2. I think it clear from the nature of a vote-dilution claim and the text of §2 that the answer must be yes. There is nothing in the statutory text to suggest that Congress meant to protect minority opportunity to elect solely by the creation of majority-minority districts. See Voinovich v. Quilter, 507 U. S. 146, 155 (1993) (“[Section 2] says nothing about majority-minority districts”). On the contrary, §2 “focuses exclusively on the consequences of apportionment,” ibid., as Congress made clear when it explicitly prescribed the ultimate functional approach: a totality of the circumstances test. See 42 U. S. C. §1973(b) (“A violation … is established if, based on the totality of circumstances, it is shown …”). And a functional analysis leaves no doubt that crossover districts vindicate the interest expressly protected by §2: the opportunity to elect a desired representative.
[/align]