League of United Latin American Citizens v. Perry 548 U. S. ____

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Opinion [Justice Kennedy]
CD In Part [Justice Stevens]
CD In Part [Justice Souter]
CD In Part [Justice Breyer]
CD In Part [Chief Justice Roberts]
CD In Part [Justice Scalia]

548 U. S. ____ (2006)
NOS. 05-204, 05-254, 05-276 AND 05-439


05–204   v.



05–254   v.



05–276   v.



05–439   v.


on appeals from the united states district court for the eastern district of texas

[June 28, 2006]

Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice and Justice Alito join as to Part III, concurring in the judgment in part and dissenting in part.


As I have previously expressed, claims of unconstitutional partisan gerrymandering do not present a justiciable case or controversy. See Vieth v. Jubelirer, 541 U. S. 267, 271–306 (2004) (plurality opinion). Justice Kennedy’s discussion of appellants’ political-gerrymandering claims ably demonstrates that, yet again, no party or judge has put forth a judicially discernable standard by which to evaluate them. See ante, at 6–16. Unfortunately, the opinion then concludes that the appellants have failed to state a claim as to political gerrymandering, without ever articulating what the elements of such a claim consist of. That is not an available disposition of this appeal. We must either conclude that the claim is nonjusticiable and dismiss it, or else set forth a standard and measure appellant’s claim against it. Vieth, supra, at 301. Instead, we again dispose of this claim in a way that provides no guidance to lower-court judges and perpetuates a cause of action with no discernible content. We should simply dismiss appellants’ claims as nonjusticiable.


I would dismiss appellants’ vote-dilution claims premised on §2 of the Voting Rights Act of 1965 for failure to state a claim, for the reasons set forth in Justice Thomas’s opinion, which I joined, in Holder v. Hall, 512 U. S. 874, 891–946 (1994) (opinion concurring in judgment). As The Chief Justice makes clear, see ante, p. ___ (opinion concurring in part, concurring in judgment in part, and dissenting in part), the Court’s §2 jurisprudence continues to drift ever further from the Act’s purpose of ensuring minority voters equal electoral opportunities.


Because I find no merit in either of the claims addressed by the Court, I must consider appellants’ race-based equal protection claims. The GI Forum appellants focus on the removal of 100,000 residents, most of whom are Latino, from District 23. They assert that this action constituted intentional vote dilution in violation of the Equal Protection Clause. The Jackson appellants contend that the intentional creation of District 25 as a majority-minority district was an impermissible racial gerrymander. The District Court rejected the equal protection challenges to both districts.


The GI Forum appellants contend that the Texas Legislature removed a large number of Latino voters living in Webb County from District 23 with the purpose of diminishing Latino electoral power in that district. Congressional redistricting is primarily a responsibility of state legislatures, and legislative motives are often difficult to discern. We presume, moreover, that legislatures fulfill this responsibility in a constitutional manner. Although a State will almost always be aware of racial demographics when it redistricts, it does not follow from this awareness that the State redistricted on the basis of race. See Miller v. Johnson, 515 U. S. 900, 915–916 (1995). Thus, courts must “exercise extraordinary caution” in concluding that a State has intentionally used race when redistricting. Id., at 916. Nevertheless, when considerations of race predominate, we do not hesitate to apply the strict scrutiny that the Equal Protection Clause requires. See, e.g., Shaw v. Hunt, 517 U. S. 899, 908 (1996) (Shaw II); Miller, supra, at 920.

At the time the legislature redrew Texas’s congressional districts, District 23 was represented by Congressman Henry Bonilla, whose margin of victory and support among Latinos had been steadily eroding. See Session v. Perry, 298 F. Supp. 2d 451, 488–489 (ED Tex. 2004) (per curiam). In the 2002 election, he won with less than 52 percent of the vote, ante, at 17 (opinion of the Court), and received only 8 percent of the Latino vote, Session, 298 F. Supp. 2d, at 488. The District Court found that the goal of the map-drawers was to adjust the lines of that district to protect the imperiled incumbent: “The record presents undisputed evidence that the Legislature desired to increase the number of Republican votes cast in Congressional District 23 to shore up Bonilla’s base and assist in his reelection.” Ibid. To achieve this goal, the legislature extended the district north to include counties in the central part of the State with residents who voted Republican, adding 100,000 people to the district. Then, to comply with the one-person, one-vote requirement, the legislature took one-half of heavily Democratic Webb County, in the southern part of the district, and included it in the neighboring district. Id., at 488–489.

Appellants acknowledge that the State redrew District 23 at least in part to protect Bonilla. They argue, however, that they assert an intentional vote-dilution claim that is analytically distinct from the racial-gerrymandering claim of the sort at issue in Shaw v. Reno, 509 U. S. 630, 642–649 (1993) (Shaw I). A vote-dilution claim focuses on the majority’s intent to harm a minority’s voting power; a Shaw I claim focuses instead on the State’s purposeful classification of individuals by their race, regardless of whether they are helped or hurt. Id., at 651–652 (distinguishing the vote-dilution claim in United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977)). In contrast to a Shaw I claim, appellants contend, in a vote-dilution claim the plaintiff need not show that the racially discriminatory motivation predominated, but only that the invidious purpose was a motivating factor. Appellants contrast Easley v. Cromartie, 532 U. S. 234, 241 (2001) (in a racial-gerrymandering claim, “[r]ace must not simply have been a motivation for the drawing of a majority-minority district, but the predominant factor motivating the legislature’s districting decision” (citation and internal quotation marks omitted)), with Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 265–266 (1977), and Rogers v. Lodge, 458 U. S. 613, 617 (1982). Whatever the validity of this distinction, on the facts of these cases it is irrelevant. The District Court’s conclusion that the legislature was not racially motivated when it drew the plan as a whole, Session, 298 F. Supp. 2d, at 473, and when it split Webb County, id., at 509, dooms appellants’ intentional-vote-dilution claim.

We review a district court’s factual finding of a legislature’s motivation for clear error. See Easley, supra, at 242. We will not overturn that conclusion unless we are “ ‘left with the definite and firm conviction that a mistake has been committed.’ ” Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948)). I cannot say that the District Court clearly erred when it found that “[t]he legislative motivation for the division of Webb County between Congressional District 23 and Congressional District 28 in Plan 1374C was political.” Session, 298 F. Supp. 2d, at 509.

Appellants contend that the District Court had evidence of the State’s intent to minimize Latino voting power. They note, for instance, that the percentage of Latinos in District 23’s citizen voting-age population decreased significantly as a result of redistricting and that only 8 percent of Latinos had voted for Bonilla in the last election. They also point to testimony indicating that the legislature was conscious that protecting Bonilla would result in the removal of Latinos from the district and was pleased that, even after redistricting, he would represent a district in which a slight majority of voting-age residents was Latino. Of the individuals removed from District 23, 90 percent of those of voting age were Latinos, and 87 percent voted for Democrats in 2002. Id., at 489. The District Court concluded that these individuals were removed because they voted for Democrats and against Bonilla, not because they were Latino. Id., at 473, 508–510. This finding is entirely in accord with our case law, which has recognized that “a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.” Hunt v. Cromartie, 526 U. S. 541, 551 (1999). See also Bush v. Vera, 517 U. S. 952, 968 (1996) (plurality opinion) (“If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify”). [Footnote 1] Appellants argue that in evaluating the State’s stated motivation, the District Court improperly conflated race and political affiliation by failing to recognize that the individuals moved were not Democrats, they just voted against Bonilla. But the District Court found that the State’s purpose was to protect Bonilla, and not just to create a safe Republican district. The fact that the redistricted residents voted against Bonilla (regardless of how they voted in other races) is entirely consistent with the legislature’s political and nonracial objective.

I cannot find, under the clear error standard, that the District Court was required to reach a different conclusion. See Hunt, supra, at 551. “Discriminatory purpose … implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979) (citation, some internal quotation marks, and footnote omitted). The District Court cited ample evidence supporting its finding that the State did not remove Latinos from the district because they were Latinos: The new District 23 is more compact than it was under the old plan, see Session, 298 F. Supp. 2d, at 506, the division of Webb County simply followed the interstate highway, id., at 509–510, and the district’s “lines did not make twists, turns, or jumps that can be explained only as efforts to include Hispanics or exclude Anglos, or vice-versa,” id., at 511. Although appellants put forth alternative redistricting scenarios that would have protected Bonilla, the District Court noted that these alternatives would not have furthered the legislature’s goal of increasing the number of Republicans elected statewide. Id., at 497. See Miller, 515 U. S., at 915 (“Electoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests”). Nor is the District Court’s finding at all impugned by the fact that certain legislators were pleased that Bonilla would continue to represent a nominally Latino-majority district.

The ultimate inquiry, as in all cases under the Equal Protection Clause, goes to the State’s purpose, not simply to the effect of state action. See Washington v. Davis, 426 U. S. 229, 238–241 (1976). Although it is true that the effect of an action can support an inference of intent, see id., at 242, there is ample evidence here to overcome any such inference and to support the State’s political explanation. The District Court did not commit clear error by accepting it.


The District Court’s finding with respect to District 25 is another matter. There, too, the District Court applied the approach set forth in Easley, in which the Court held that race may be a motivation in redistricting as long as it is not the predominant one. 532 U. S., at 241. See also Bush, 517 U. S., at 993 (O’Connor, J., concurring) (“[S]o long as they do not subordinate traditional districting criteria to the use of race for its own sake or as a proxy, States may intentionally create majority-minority districts, and may otherwise take race into consideration, without coming under strict scrutiny”). In my view, however, when a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation and strict scrutiny is therefore triggered. See id., at 999–1003 (Thomas, J., joined by Scalia, J., concurring in judgment). As in Bush, id., at 1002, the State’s concession here sufficiently establishes that the legislature classified individuals on the basis of their race when it drew District 25: “[T]o avoid retrogression and achieve compliance with §5 of the Voting Rights Act … , the Legislature chose to create a new Hispanic-opportunity district—new CD 25—which would allow Hispanics to actually elect its candidate of choice.” Brief for State Appellees 106. The District Court similarly found that “the Legislature clearly intended to create a majority Latino citizen voting age population district in Congressional District 25.” Session, supra, at 511. Unquestionably, in my view, the drawing of District 25 triggers strict scrutiny.

Texas must therefore show that its use of race was narrowly tailored to further a compelling state interest. See Shaw II, 517 U. S., at 908. Texas asserts that it created District 25 to comply with its obligations under §5 of the Voting Rights Act. Brief for State Appellees 105–106. That provision forbids a covered jurisdiction to promulgate any “standard, practice, or procedure” unless it “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race.” 42 U. S. C. §1973c. The purpose of §5 is to prevent “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U. S. 130, 141 (1976). Since its changes to District 23 had reduced Latino voting power in that district, Texas asserts that it needed to create District 25 as a Latino-opportunity district in order to avoid §5 liability.

We have in the past left undecided whether compliance with federal antidiscrimination laws can be a compelling state interest. See Miller, supra, at 921; Shaw II, supra, at 911. I would hold that compliance with §5 of the Voting Rights Act can be such an interest. We long ago upheld the constitutionality of §5 as a proper exercise of Congress’s authority under §2 of the Fifteenth Amendment to enforce that Amendment’s prohibition on the denial or abridgment of the right to vote. See South Carolina v. Katzenbach, 383 U. S. 301 (1966). If compliance with §5 were not a compelling state interest, then a State could be placed in the impossible position of having to choose between compliance with §5 and compliance with the Equal Protection Clause. Moreover, the compelling nature of the State’s interest in §5 compliance is supported by our recognition in previous cases that race may be used where necessary to remedy identified past discrimination. See, e.g., Shaw II, supra, at 909 (citing Richmond v. J. A. Croson Co., 488 U. S. 469, 498–506 (1989). Congress enacted §5 for just that purpose, see Katzenbach, supra, at 309; Beer, supra, at 140–141, and that provision applies only to jurisdictions with a history of official discrimination, see 42 U. S. C. §§1973b(b), 1973c; Vera v. Richards, 861 F. Supp. 1304, 1317 (SD Tex. 1994) (recounting that, because of its history of racial discrimination, Texas became a jurisdiction covered by §5 in 1975). In the proper case, therefore, a covered jurisdiction may have a compelling interest in complying with §5.

To support its use of §5 compliance as a compelling interest with respect to a particular redistricting decision, the State must demonstrate that such compliance was its “ ‘actual purpose’ ” and that it had “ ‘a strong basis in evidence’ for believing,” Shaw II, supra, at 908–909, n. 4 (citations omitted), that the redistricting decision at issue was “reasonably necessary under a constitutional reading and application of” the Act, Miller, 515 U. S., at 921. [Footnote 2] Moreover, in order to tailor the use of race narrowly to its purpose of complying with the Act, a State cannot use racial considerations to achieve results beyond those that are required to comply with the statute. See id., at 926 (rejecting the Department of Justice’s policy that maximization of minority districts was required by §5 and thus that this policy could serve as a compelling state interest). Section 5 forbids a State to take action that would worsen minorities’ electoral opportunities; it does not require action that would improve them.

In determining whether a redistricting decision was reasonably necessary, a court must bear in mind that a State is permitted great flexibility in deciding how to comply with §5’s mandate. See Georgia v. Ashcroft, 539 U. S. 461, 479–483 (2003). For instance, we have recognized that §5 does not constrain a State’s choice between creating majority-minority districts or minority-influence districts. Id., at 480–483. And we have emphasized that, in determining whether a State has impaired a minority’s “effective exercise of the electoral franchise,” a court should look to the totality of the circumstances statewide. These circumstances include the ability of a minority group “to elect a candidate of its choice” or “to participate in the political process,” the positions of legislative leadership held by individuals representing minority districts, and support for the new plan by the representatives previously elected from these districts. Id., at 479–485.

In light of these many factors bearing upon the question whether the State had a strong evidentiary basis for believing that the creation of District 25 was reasonably necessary to comply with §5, I would normally remand for the District Court to undertake that “fact-intensive” inquiry. See id., at 484, 490. Appellants concede, however, that the changes made to District 23 “necessitated creating an additional effective Latino district elsewhere, in an attempt to avoid Voting Rights Act liability.” Brief for Appellant Jackson et al. in No. 05–276, p. 44. This is, of course, precisely the State’s position. Brief for State Appellees 105–106. Nor do appellants charge that in creating District 25 the State did more than what was required by §5. [Footnote 3] In light of these concessions, I do not believe a remand is necessary, and I would affirm the judgment of the District Court.

Footnote 1

 The District Court did not find that the legislature had two motivations in dividing Webb County, one invidious and the other political, and that the political one predominated. Rather, it accepted the State’s explanation that although the individuals moved were largely Latino, they were moved because they voted for Democrats and against Bonilla. For this reason, appellants’ argument that incumbent protection cannot be a compelling state interest is off the mark. The District Court found that incumbent protection, not race, lay behind the redistricting of District 23. Strict scrutiny therefore does not apply, and the existence vel non of a compelling state interest is irrelevant.

Footnote 2

 No party here raises a constitutional challenge to §5 as applied in these cases, and I assume its application is consistent with the Constitution.

Footnote 3

 Appellants argue that in Bush v. Vera, 517 U. S. 952 (1996), we did not allow the purpose of incumbency protection in one district to justify the use of race in a neighboring district. That is not so. What we held in Bush was that the District Court had not clearly erred in concluding that, although the State had political incumbent-protection purposes as well, its use of race predominated. See id., at 969 (plurality opinion). We then applied strict scrutiny, as I do here. But we said nothing more about incumbency protection as part of that analysis. Rather, we rejected the State’s argument that compliance with §5 was a compelling interest because the State had gone beyond mere nonretrogression. Id., at 983; id., at, 1003 (Thomas, J., joined by Scalia, J, concurring in judgment).

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