Facts—After being entitled to three more U.S. representatives after the 1990 census, Texas, in an attempt to comply with the Voting Rights Act of 1965, created and reconfigured three districts to ensure a majority of African Americans and Hispanics. After voters challenged state officials, including then Governor George W. Bush, about these districts, a three-judge U.S. District Court ruled that they violated the equal protection clause of the Fourteenth Amendment.

Question—Did the Texas redistricting violate the equal protection clause of the Fourteenth Amendment?

Decision—Yes, redistricting that resulted in oddly shaped districts was subject to “strict scrutiny” and was “not narrowly tailored to serve a compelling state interest.”

Reasons—J. O’Connor (5–4). According to precedents, the Court should apply strict scrutiny “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.” Such strict scrutiny is triggered whenever race is the “predominate factor” used in districting. Although there is evidence that the redistricting here involved “mixed motives,” and especially the desire to protect incumbents, the computer programs used analyzed block-by-block racial data and resulted in oddly shaped districts without attention to traditional concerns of “principles of compactness and regularity.” Anytime the use of race is this apparent, the Court has to apply strict scrutiny and to see that any remedies are “narrowly tailored” to their objectives. Neither the state’s interest in avoiding liability under the “results” test of the Voting Rights Act, nor its interest in remedying past discrimination, nor the “nonretrogression principle” of the Voting Rights Act (designed to prevent racial minorities from losing ground as a result of redistricting provisions), were compelling enough to justify what Texas has done in this case.

In a separate concurring opinion, O’Connor expressed the view that compliance with the results test of the Voting Rights Act can be a compelling state interest that can coexist with the decision in Shaw v. Reno (1993), albeit not by designing oddly shaped districts that ignore “traditional districting principles and deviate substantially from the hypothetical court-drawn district, for predominantly racial reasons.” In his concurring opinion, J. Kennedy argued that the part of the majority decision relating to strict scrutiny was unnecessary to its decision.

J. Stevens argued in dissent that “the Court has misapplied its own tests for racial gerrymandering, both by applying strict scrutiny to all three of these districts, and then by concluding that none can meet that scrutiny.” He further argued that in Shaw v. Reno, the Court had “struck out into a jurisprudential wilderness that lacks a definable constitutional core and threatens to create harms more significant than any suffered by the individual plaintiffs.” In his dissent, J. Souter further argued that the majority decision failed “to identify an injury distinguishable from the consequences of concededly constitutional conduct” and further pointed to what he believed to be the arbitrariness of the Shaw decision and its progeny.