Bush v. Vera

PETITIONER:Bush
RESPONDENT:Vera
LOCATION:Texas General Assembly

DOCKET NO.: 94-805
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT:

CITATION: 517 US 952 (1996)
ARGUED: Dec 05, 1995
DECIDED: Jun 13, 1996

ADVOCATES:
Daniel E. Troy – Argued the cause for the appellees in all cases
Javier Aguilar – Argued the cause for the appellants in Bush v. Vera
Paul Bender – Argued the cause for the United States in United States v. Vera
Penda D. Hair – Argued the cause for the appellants in Lawson v. Vera

Facts of the case

Following the 1990 census, Texas planned the creation of three additional congressional districts. Following the redistricting, registered voters challenged the plans as racial gerrymandering. A three-judge federal district court found the plans unconstitutional. The case moved to the Supreme Court on appeal.

Question

Do the Texas redistricting plans violate the Equal Protection Clause of the Fourteenth Amendment?

William H. Rehnquist:

We’ll hear argument now in Number 94 805, George W. Bush v. Al Vera, William Lawson v. Al Vera, and United States v. Al Vera.

Mr. Aguilar.

Javier Aguilar:

Mr. Chief Justice and may it please the Court–

At issue in this direct appeal is the constitutionality of three congressional districts that the court below erroneously ruled were racially gerrymandered.

These districts are localized in two metropolitan areas of the State of Texas, two counties, Harris County and Dallas County.

The districts involved are Congressional Districts 18, which is a black opportunity district that was created originally in the 1970’s in Harris County, Congressional District 29, which is a brand new congressional district, which is now a Hispanic opportunity district in Harris County, and Congressional District 30, which is a black opportunity district in Dallas County, a brand new black opportunity district.

Antonin Scalia:

Mr. Aguilar, what is this opportunity district?

This is new terminology.

Javier Aguilar:

Well, it’s a majority minority district that was created under–

Antonin Scalia:

Why don’t we just call them majority minority districts?

I mean, you’re entitled to use whatever terminology… you can call them, you know, motherhood apple pie districts if you like, but you will be insulting my intelligence every time you say it.

Can’t we give it some, you know, unemotive terminology that we can use in the argument?

Javier Aguilar:

–Yes, Your Honor.

Antonin Scalia:

Thank you.

Javier Aguilar:

I’ll refer to them as majority minority districts.

The district court we believe legally erred in its finding below that the three districts were racially gerrymandered for two reasons.

First, it held that race predominated in the drawing of the districts, but it did so because it refused to recognize the State’s customary and traditional redistricting principle of incumbency protection, as well as other principles that it utilized, including the equal population rule that it always follows and it must follow–

William H. Rehnquist:

That’s pretty much a question of fact, isn’t it, Mr. Aguilar, whether it was basically a desire to preserve incumbency or whether it was the desire to create majority minority districts?

Javier Aguilar:

–Well, yes, sir, it is a question of fact, Your Honor, but in this case… they decided this case before Miller v. Johnson, and I think their opinion is clear that they did not believe that incumbency protection should be considered a traditional districting principle because it was not among those listed in the Shaw v. Reno case to begin with.

It is our contention that the determination of what is a customary and traditional districting principle is something that is determined by the State and its practices, its historical practices, and there was no doubt that in this case there’s plenty of evidence to show that Texas has followed the traditional practice of incumbency protection to decide where it’s going to draw its districts, and incumbency protection as applied by the Texas legislature, certainly in the 1990’s, really has four aspects, Mr. Chief Justice.

First, it is not pairing incumbents.

It will not vote for a plan that does not pair incumbents, simply because they want to preserve the State’s congressional seniority.

Second, it means that if you’re going to have to redraw districts, which they had to because of the fact that the population had increased so greatly in Texas that we had been reapportioned three different districts, that you try to maintain the constituency of each of the Congresspeople.

William H. Rehnquist:

Okay, but Mr. Aguilar, you made this argument, I take it, to the district court, and you can see it’s a question of fact as to what the motivation for drawing… and the district court rejected those findings.

Are you contending here that they’re clearly erroneous?

Javier Aguilar:

No, Your Honor.

We’re saying that their decision is legally wrong because it did not properly apply the rule of Miller v. Johnson.

Now, in fact, quite frankly they didn’t have it to apply because it wasn’t decided until sometime after the opinion.

What we’re saying is, they recognized–

Sandra Day O’Connor:

Well, but Mr. Aguilar, the district court did make findings that the districts were formed in utter disregard for traditional redistricting criteria, and were unexplainable on other than racial grounds.

Sandra Day O’Connor:

Now, are those findings… do you say either of those are clearly erroneous?

Javier Aguilar:

–Those findings are tainted, Your Honor, by the legal error in not recognizing that the State of Texas has a long tradition of protecting incumbents, and that–

Sandra Day O’Connor:

Well, do you argue that protection of incumbents is a compelling State interest?

Javier Aguilar:

–No, Your Honor.

We’re saying that that is–

Sandra Day O’Connor:

You’re just saying it’s a traditional State interest that is followed in Texas–

Javier Aguilar:

–It is something–

Sandra Day O’Connor:

–in drawing districts.

Javier Aguilar:

–That is correct, Justice O’Connor.

What we’re saying is, you… if you’re going to try to determine whether there has been a racial motivation, you look at all the different objectives–

Sandra Day O’Connor:

Well–

Javier Aguilar:

–that the State utilized.

Sandra Day O’Connor:

–all right, but you did present evidence to the district court of protection of incumbency.

I mean, that evidence was apparently before the district court, and it nevertheless found that that may well be so, but it was overshadowed here by the decision in drawing the district boundaries to totally draw them along racial lines.

Javier Aguilar:

Yes, Your Honor, and if I may, they certainly considered that, and they even acknowledged in their opinion that incumbency protection was a major objective in the State, all over the State.

Sandra Day O’Connor:

Right.

Javier Aguilar:

And they didn’t particularly like it, and they said as much, but despite the fact that 24 out of the 30 districts, Justice O’Connor, were challenged on these grounds, only these three districts were found to be racially gerrymandered, and I’d like to point to the Court… refer to the Court to Joint Appendix at page 192.

I’d like to use that as an example, trying to flesh out what I’m trying to say.

Ruth Bader Ginsburg:

Mr. Aguilar, before you do that, remind me… I think you mentioned it just a moment ago.

Didn’t this Court not credit incumbency on the same line as the traditional factors that were mentioned in the Shaw opinion?

As you pointed out, Miller had not yet been decided, and I… can you be precise about how this Court treated incumbency?

Did it consider it a traditional districting factor?

Javier Aguilar:

Are you asking in the Shaw opinion, Your Honor?

Ruth Bader Ginsburg:

No, in this opinion.

Javier Aguilar:

I think it recognized that it was a motivation of the legislature all over the State.

I think it certainly recognized and accepted that.

I think that in the process of accepting that–

Ruth Bader Ginsburg:

Did it treat it as something that could dominate?

My question is, did the Court recognize that incumbency should be treated as a legitimate factor?

Javier Aguilar:

–No, Your Honor.

Javier Aguilar:

They believed that incumbency protection was not something that this Court referred to in the Shaw decision and, consequently, since it didn’t fall within the… those factors that this Court referenced in Shaw, therefore it wasn’t something that they could pay attention to, and I think–

David H. Souter:

Let me… may I ask you to go one step further?

I take it, of course, because they were deciding before Miller came down, I take it that what the court was doing was saying that predominant racial motive is an alternative to incumbency protection as a factor, whereas your argument is after… I think, after Miller, we judge what is a predominant racial motive by asking, among other things, whether it was done in disregard of traditional districting practices, and your final step is, incumbency protection is one of the objects of traditional districting practices.

So that I think what you’re saying is the court made an either or choice when there wasn’t an either or choice.

The two alternatives that it was opposing to each other are not really opposing alternatives.

It should have considered incumbency protection in deciding whether the motive was predominantly racial.

Javier Aguilar:

–That is–

David H. Souter:

Is that fair?

Javier Aguilar:

–That is exactly correct, Justice Souter.

Anthony M. Kennedy:

Counsel, I want you to get to section… to page 192, but let me ask you one question before you do that.

If incumbency protection is the motive, but the means used to effect it is racial gerrymandering, is that constitutional?

Does that comply with Miller?

Javier Aguilar:

Well, no, Your Honor.

We are saying that you can… the legislature can apply its traditional motivation of incumbency protection, and just because it’s applying it in an area where there are blacks or Hispanics living, that doesn’t necessarily mean that the end result is a racial gerrymander.

Anthony M. Kennedy:

Well, suppose I say I want to protect incumbents and, incidentally, I take it this means any incumbent who is an officeholder can protect his or her interests by running for some other office.

A State Senator can be a Congressman, and that’s incumbency protection in Texas.

Let’s assume that that is the goal, and we say, in order to do this we’re going to have racial gerrymanders.

Does this… is this consistent with the Court’s holding in Miller?

Javier Aguilar:

Well, if the predominant motivation is just collecting as many minorities that you can within one district, and you don’t care whether it protects your incumbents, you don’t care about–

Anthony M. Kennedy:

No, no, that’s not my hypothetical.

My hypothetical is, we want to protect incumbents, and the way we’re going to do this, the principal way, the principal mechanism we’re going to use is assigning voters to districts on account… by race.

Does that comport with the command of Miller?

Javier Aguilar:

–I think it would, Your Honor.

You have to find out why race is considered.

We’re not saying that we cannot consider race, but in our case, Your Honor–

Anthony M. Kennedy:

Well, that’s one of the things we’re going to ask.

Javier Aguilar:

–Well, in our… for instance, if we had a case where there was no reason to create this district… in other words, there was very little reason to create a majority minority district under the Voting Rights Act, then I would say we would be running afoul of this Court’s ruling in Miller, but when you have a situation where–

Sandra Day O’Connor:

Well now, Mr. Aguilar, was there evidence here that majority minority districts could have been drawn in 18, 29, and 30 that would have been more compact, and that would not have presented this racial gerrymander problem, and nevertheless have satisfied some of the incumbents?

Javier Aguilar:

–Let me–

Sandra Day O’Connor:

I mean, there were proposals made–

Javier Aguilar:

–That’s correct, there were.

Sandra Day O’Connor:

–were there not–

Javier Aguilar:

Yes, Your Honor.

Sandra Day O’Connor:

–That still would have provided majority minority districts for–

Javier Aguilar:

Yes.

Sandra Day O’Connor:

–blacks and Hispanics.

Javier Aguilar:

Yes, Your Honor.

Sandra Day O’Connor:

But wouldn’t have been drawn, you know, house to house to pick up certain particular voters in the racial base.

Javier Aguilar:

Well, they weren’t drawn house to house, Your Honor, but yes, there was in the evidence… in fact, the State itself presented alternative districts in these three areas that were geographically more compact.

The plaintiffs presented alternative plans.

Their expert, Mr. Weber, Dr. Weber, they had another plan, the Owens Pate plan.

All of their plans that they presented were more geographically compact.

The problem with the–

Sandra Day O’Connor:

Yes, so this case doesn’t present, does it, a situation where Texas had no means of assuring a racial composition and balance, even if these peculiar districts are tossed out?

Javier Aguilar:

–Well, that’s right.

We could draw other alternative districts, there was no question about that.

The reason we didn’t–

Sandra Day O’Connor:

Does that go to narrow tailoring, do you suppose?

Javier Aguilar:

–No, Your Honor.

Sandra Day O’Connor:

No.

Javier Aguilar:

Our position–

Sandra Day O’Connor:

I would have thought it might.

Javier Aguilar:

–Well, our position on narrow tailoring is that once there is a reason to draw the districts under the Voting Rights Act, the narrow tailoring means you just draw the district that’s necessary that affords that group an opportunity to elect someone of their choosing.

William H. Rehnquist:

You mean, the number of districts?

Javier Aguilar:

The number of districts, that’s correct, Your Honor.

William H. Rehnquist:

What would be an example of broad tailoring, then, once you find that the… you want to draw those kinds of… are there any kind of boundary lines you can’t have?

Javier Aguilar:

Well, I think that… I guess the best example would be in the Miller case.

The boundaries there were much… we’re talking about a totally different district that spanned some 200, 250 miles, that linked together different cities, different disparate black populations that had very little in common with them, where the district boundaries themselves, the black population was located in the outer ridges of the district.

That’s not what we have here.

We believe narrow–

William H. Rehnquist:

So you do recognize that narrow tailoring would outlaw some kinds of districts drawn after a decision to draw majority minority… but you say this is narrowly tailored in your case.

Javier Aguilar:

–It’s narrowly tailored because we first of all realized that there was a sufficiently large minority population in a geographically compact area, and there was racially polarized voting.

Having made that determination, we then drew a district in that location.

Now, I agree with the suggestion of Justice O’Connor that there were different alternatives.

We could have drawn all kinds of different boundaries, but it was… you know, politics is a contact sport–

William H. Rehnquist:

Do you–

Javier Aguilar:

–and people don’t want to… sorry, Your Honor.

Stephen G. Breyer:

–If, in fact… suppose for the sake of argument that it was accepted that under Miller you could use race as a basis for creating a section 2 required district of the Voting Rights Act, a reasonably compact one.

Suppose you also thought that insofar as a district departs from a compact shape, that’s okay if the motive for the departure from the compact shape has nothing to do with race, such as protecting incumbents.

If you thought both of those things, then would you have to remand this case in order to decide if the reason that these districts depart from the compact shape is incumbency protection?

Javier Aguilar:

No, Your Honor.

I think the evidence is sufficient here to be able to reverse, Your Honor, and render.

I think that the error is one of law.

I think that–

Sandra Day O’Connor:

But Mr. Aguilar, in answer to Justice O’Connor you said that they could have… perhaps I misunderstood your answer, but I thought you said that they could have satisfied the minority majority district composition with a more compact… that they could have satisfied both incumbency and race.

Perhaps you didn’t complete your answer.

Javier Aguilar:

–I did not complete my answer.

The reason why they didn’t, they would not have, the legislature I’m talking about, would not have accepted the proposed plans that the plaintiffs proposed and even the State plans… the districts that we drew for litigation purposes show that we could, in fact, draw more geographically compact districts… was because they would pair incumbents.

It’s because we would lose some of our Congressmen in Congress, and we did not want to do that.

Antonin Scalia:

Mr. Aguilar, let me understand what you’re saying about the incumbency justification.

Is it that if… let’s say you have a black or Hispanic Congressman.

It is okay to use race as a criterion in drawing a district so long as its purpose is to protect the seat of that Congressman.

That is, I draw a majority black district or a majority Hispanic district because the incumbent happens to be a black or a Hispanic.

Is that… would that be constitutional?

Javier Aguilar:

If the question ignores the requirements of the Voting Rights Act, I would say there would be a problem, if that’s your only goal, but that’s–

Antonin Scalia:

I don’t–

Javier Aguilar:

–What I’m saying, we have… the Texas legislature has the obligation to satisfy Federal requirements, and the Voting Rights Act is a Federal requirement, but in doing so, the State legislature ought to have, under our federalism, the right to use the same districting objectives as it uses for all the districts.

Antonin Scalia:

–But you say that’s a valid objective even though race is the means of achieving that objective, is that your position?

Javier Aguilar:

Well–

Antonin Scalia:

Or do you say that race was not used here?

Antonin Scalia:

I–

Javier Aguilar:

–Race was used.

It had to be, because our prime… because one of our objectives was to create a majority minority district–

Antonin Scalia:

–So your question–

Javier Aguilar:

–pursuant to the Voting Rights Act.

Antonin Scalia:

–But your answer to my question must be yes, then.

If I have a black Congressman, I can say, I want to protect that Congressman’s seat and therefore, simply because I want to protect that Congressman’s seat, it is okay to draw a black district.

Javier Aguilar:

Well, I didn’t finish the four different aspects of incumbency.

It’s just not protecting the incumbent’s, black incumbent’s seat, but rather, it’s also protecting those around them, the Congressmen around them, and in this–

Sandra Day O’Connor:

Well, let me ask you this.

Suppose you have a district that’s a majority white district, and the incumbent says, look, we have to redistrict, and don’t put any blacks in my district.

They won’t vote for me, and I won’t have it.

You have to protect me.

Now, is that okay?

Javier Aguilar:

–Well, it’s–

Sandra Day O’Connor:

Can the legislature then say, fine, we’re concerned about you, Mr. Incumbent, and so we’ll exclude all blacks from your district.

Is that constitutional?

Javier Aguilar:

–Well, no, Your Honor, not in the hypothetical that you just posed to me, but that was not what we did here, Your Honor.

What we did here was, we made a determination that we–

Sandra Day O’Connor:

Well, you may have… it may have been done in reverse.

Javier Aguilar:

–Well, in fact, many blacks that could have been in a more compact jurisdiction, or a more compact district, in fact didn’t go into the majority minority district.

They remained in other districts, and in fact they became impact districts, if you will.

John Paul Stevens:

May I ask, is this what you’re saying in substance, that incumbency protection had nothing to do with the number of majority minority districts.

It merely explains the shape of the districts, because after you decided the number you had to satisfy the incumbents and draw all these squiggly lines.

Javier Aguilar:

Absolutely, Your Honor.

In fact, and if I may before my time expires, if you look at page 192, that’s the map of the Dallas area, District 6 and District 12 were not impacted by the drawing of District 30, and yet the shape of both 6 and 12 look rather strange.

In fact–

John Paul Stevens:

Were they challenged?

Did anybody file suit to challenge 6?

Javier Aguilar:

–They were challenged, Your Honor, but the court held there was no racial gerrymandering.

Javier Aguilar:

These are predominantly and overwhelmingly white districts.

The reason the districts look like this has nothing to do with race.

It has to do with the fact that the legislature was trying to draw districts that those incumbents could be elected from, trying to not only keep as many constituents there, but also they’re going to have to bring in constituents, bring in constituents that would be supportive of that Congressman.

William H. Rehnquist:

Thank you, Mr. Aguilar.

Mr. Bender, we’ll hear from you.

Paul Bender:

Thank you, Mr. Chief Justice, and may it please the Court–

Even if strict scrutiny is applicable to the districts in this case, the district court decision invalidating those districts was legally incorrect and it must be reversed.

The district court held that although Texas might have a compelling interest in creating majority minority, or minority opportunity districts in Dallas and Houston in order to protect the rights of minorities in those communities, who are the victims of polarized voting, to protect their right to participate in the process in a fair way, that even if Texas had those compelling interests, the districts that Texas actually created were not narrowly tailored.

The court held that because it found that Texas could have created three districts that were more compact than the ones that it actually created, and that in departing from compactness, the court flunked the narrow tailoring test.

David H. Souter:

Do you agree with Mr. Aguilar that that is basically a confusion of categories, that narrow tailoring goes basically to number of districts, and the niceness of the lines with which they are drawn is essentially the question, or is essentially an issue that you look at when you’re deciding whether, in fact, the motive was predominantly racial as distinct from a motive consistent with customary districting practices?

Paul Bender:

I think the niceness of the lines is relevant probably to both aspects of it.

One of the ways that you can depart from narrow tailoring would be to draw racial lines gratuitously.

David H. Souter:

Well, I suppose if you… there’s a point at which the line is crossed between protecting an incumbent who draws votes predominantly from one race, on the one hand, and packing on the other hand, but that is an inquiry, I take it, that you would make at the point where you’re saying, what is the predominant motive here in order to determine whether strict scrutiny applies at all?

Is that fair to say?

Paul Bender:

Well, I think it’s fair to say, but I think a State could have a compelling interest to create a majority minority district and then put many more minorities in that district than were necessary.

David H. Souter:

That would be packing.

Paul Bender:

That would be packing, and that would be a violation of the narrow tailoring test.

David H. Souter:

But not the shape of the district.

Paul Bender:

The shape of the district might be a violation of the narrow tailoring.

Antonin Scalia:

Yes.

I thought that narrow tailoring applied to kicking over any more of the normal criteria for district drawing than is necessary to achieve the objective.

Paul Bender:

Right, and–

Antonin Scalia:

One of which would be compactness and contiguity.

Paul Bender:

–And another would be incumbency protection.

David H. Souter:

Yes.

Mr. Bender–

–No, but you don’t have… excuse me.

Well, go on.

I was going to–

–Let me just follow up on one of Justice Scalia’s questions.

David H. Souter:

But if you cannot draw a majority minority district without jettisoning your traditional districting principles, you don’t have to do it.

In other words, section 2 does not require you to throw out the tradition of districting in order to create a majority minority district, and if that were the case, then you wouldn’t have the compelling interest of complying with section 2.

Paul Bender:

Right, and so here, the fact that the State could have drawn three compact districts, two in Houston and one in Dallas… it could have drawn a compact district in Dallas to provide black minorities there with an opportunity to participate fairly in the process.

It didn’t do that, and the record is absolutely clear on this.

The district court was absolutely clear on it.

It didn’t do that because of the interests of the incumbents who were surrounding that district.

They did not want that compact district because it took too many Democratic voters away from them, and so they pulled Democratic voters out of that compact district, which required the minority district to get voters from some place else in order to both satisfy the one person one vote requirement and remain a majority minority district.

Antonin Scalia:

Mr. Bender, is your answer the same… well, let me ask this first.

The appellees’ brief cites a law review article in the Michigan Law Review which rates districts in the country for irregularity, and according to that law review article, districts 18 and 29 are tied for first with one other district in the country, as the district with the least regular borders in the country.

Is that accurate or not?

Paul Bender:

I wouldn’t say that they were necessarily tied for first, but they are certainly–

Antonin Scalia:

They’re up there… yes.

Paul Bender:

–among the most irregular districts in the country, yes.

I think everybody concedes that.

In Dallas, that irregularity occurred, I think nobody doubts this, because of the interest in protecting incumbents, and Texas’ amazingly strong interest in protecting incumbents.

That is a very strong interest that Texas traditionally has had and continues to have in districting.

They used–

Sandra Day O’Connor:

Well, it’s no different than in any other State, is it?

I used to serve in a State legislature, and I can well remember scrambling around to protect incumbents.

That’s a typical thing, isn’t it.

Paul Bender:

–I think… but the strength of it must vary from place to place.

Sandra Day O’Connor:

But do you think that that overrides the need to avoid deciding boundaries on purely racial grounds?

Is that your position?

Paul Bender:

No, it doesn’t override the need.

The question is, if a State could draw a compact minority district and it has a compelling interest in doing that to satisfy the Voting Rights Act and perhaps even the Constitution, and it also has a very strong interest in protecting incumbents, does the State have to choose between those two interests and jettison one in order to do the other?

Sandra Day O’Connor:

Or does the State have to follow the constitutional requirement not to draw lines on primarily a racial basis?

Paul Bender:

That’s not a constitutional requirement, Justice O’Connor.

I think you said in Shaw and Reno in writing for the Court, and Justice Kennedy repeated for the Court in Miller and Johnson, that that’s not an absolute prohibition.

It’s just something that requires strict scrutiny, and that strict scrutiny is satisfied if there’s a compelling interest.

Here, the district court did not deny that there was a compelling interest, but said, you’ve got to choose between your compelling interest in Dallas in having a majority district and protecting incumbents.

Paul Bender:

And in Houston the situation was a little more complicated.

There was incumbent protection interest there, but there was also the fact that the State had a compelling interest in creating a Hispanic majority district in Houston, which could have been compact, and in creating a black majority, or in keeping a black majority district in Houston.

Sandra Day O’Connor:

Well, and there are also degrees of incumbent interest.

Some incumbent officeholder might say, I want a certain type of voter in my district.

It wouldn’t double up officeholders, but nonetheless I want you to draw this along racial lines because I think I can pick up voters that are going to go to the polls more often than would be the case if it were compact.

Paul Bender:

That would require strict scrutiny.

In this case I think the evidence shows that the incumbents did not say, give us black voters just because they’re black voters.

They were looking for Democratic voters to keep their incumbency safe, and in looking for Democratic voters there is a large correlation in that part of Dallas.

Anthony M. Kennedy:

If we disagreed with that characterization of what happened, would we have to find that there was an illegality that occurred here?

Paul Bender:

I think if you found that their motivation was to get black voters just because they’re black voters, that would be unconstitutional.

Anthony M. Kennedy:

But it’s all right to get black voters just to protect incumbents.

Paul Bender:

It’s all right to get Democratic voters.

Anthony M. Kennedy:

That’s not my question.

Paul Bender:

And if in getting Democratic voters one of the ways they try to determine whether voters are likely to be Democratic or not was to look at their race, I don’t think–

Anthony M. Kennedy:

So race can be used as a surrogate.

Paul Bender:

–In that sense the motive is a nonracial one, namely to protect incumbency.

Antonin Scalia:

Do you know of any other area where we allow this, where we allow race to be used as a surrogate for some other desirable policy?

I thought that what our Constitution requires is that no matter how accurate the generalization may be, you can’t use race.

Paul Bender:

I think in this situation, if the political reality is that if you’re looking for incumbent–

Antonin Scalia:

I’m not asking about this situation.

Do you know any other situation in the law in which we allow race to be used as a surrogate for anything?

Paul Bender:

–I can’t think of one off hand.

Antonin Scalia:

I can’t, either.

Paul Bender:

But I think that–

Antonin Scalia:

But if race is, in fact, as you suggest, a real surrogate, then you don’t have to use race.

Paul Bender:

–Well, I don’t think–

Antonin Scalia:

You just look for Democrats.

Paul Bender:

–I think you look for Democrats, and there are a lot of things you look for when you’re looking for Democrats, and I think one of the things you… if all they did was say, we want Democrats, therefore we want black voters, Justice Scalia, I agree with you that would be unconstitutional.

That kind of mindless racism would be unconstitutional, but to use it as a–

Antonin Scalia:

This was a more thoughtful racism?

Antonin Scalia:

How was this done?

I thought that’s why you said this was done.

Paul Bender:

–No, this wasn’t done… no.

Antonin Scalia:

We wanted Democrats.

We know, you know, blacks are Democrats, and therefore we ended up with these–

Paul Bender:

I think they used it as one of a number of factors in deciding who would be Democratic voters to put in that district.

Stephen G. Breyer:

–Didn’t they have actual computer printouts of how people had voted?

Paul Bender:

Yes.

Antonin Scalia:

And so was there any need at all to consider their race if they wanted Democrats?

They knew how people voted in certain areas, and they knew that people in certain areas both voted Democrat and were black.

Paul Bender:

Right.

Antonin Scalia:

Is there anything in the record that suggests that they went beyond looking at the precinct lists to see that they were Democrats when they did this–

Paul Bender:

No.

I think, however, the record shows that in doing that what they ended up doing was bringing black voters into their districts, but the motive was, what they were doing was looking for Democrats.

Justice Scalia, in that area of Dallas there are a lot of black voters, and so that’s what you’re going to do if you look for Democrats.

Thank you.

William H. Rehnquist:

–Thank you, Mr. Bender.

Ms. Hair, we’ll hear from you.

Penda D. Hair:

Mr. Chief Justice, and may it please the Court–

I think I’ll just pick up with the last point, which is whether race was being used as a surrogate, and let me use the Dallas area as an example.

Representative Frost and Bryant, Congresspeople Frost and Bryant were the two white Democrats that bordered on the new opportunity district that was being squeezed in between them in Dallas County.

They took about 483,000 people out of Dallas County and of those 53… roughly 53,000 were African American.

Those two Democrats were looking for Democratic voters of any race, and they were looking for voters that they had previously represented.

The district court erred because the district court said that… and it’s a legal error.

The district court said that protection of incumbents is the equivalent of a racial factor, so all of the district court’s findings of fact that race predominated in the construction of these districts is tainted by the legal error that protecting incumbents constituted a part of the racial gerrymander.

Ruth Bader Ginsburg:

Ms. Hair–

–Did it say–

–Justice Kennedy asked a question earlier, and he said, if one would concede that incumbency protection is a legitimate traditional factor, still, how can you justify giving effect to incumbency by using race?

I think that was his question, and I’d like to get your response to that.

The position is, you got this strange shape because in satisfying the incumbents’ desire to protect their turf, you used race.

Penda D. Hair:

Your Honor, I would say that race was used to decide whether a majority minority district can be created, and again I’ll use Dallas as the example.

In Dallas what you see is, you see the compact part of the minority opportunity district, District 30, is South Dallas.

It’s a neighborhood with a community of interest that is 69 percent African American.

It shows up nice and almost oval on the district map.

The arms of that district that go to the north are majority white, and what happened is that when Congressmen Frost and Bryant came into Dallas County and peeled off, as I said, almost half a million white voters, the district had to go north to pick up population.

In going north, race was one of the factors that was considered, but it certainly was not the only factor.

The irregular arm to the west goes out to Grand Prairie and picks up white voters.

Congressman… Senator, then Senator Johnson was eager to represent those white voters in Grand Prairie because they had been in her Senate district.

That was not on the basis of race.

Another arm to the left goes out and picks up the airport, and the main northern arm goes up through the center of Dallas County, picks up about 20 percent African American voters and 80 percent non African American voters.

Antonin Scalia:

Well, I doubt that we ever assume that in any case there would ever be a situation in which nothing but race is considered.

Of course, there are always other factors, but that doesn’t prove anything.

Penda D. Hair:

Yes, Your Honor.

Our position is that a minority community of interest existed in South Dallas that could be recognized.

It could have been recognized, as Justice O’Connor points out, in a nice compact district that would have been similar to the districts that this Court upheld summarily in the California case, DeWitt.

Instead, what happened is that that minority community of interest, like all other communities of interest across the State, saw its district become irregular not because of race… there was a nice district there that would have satisfied the Voting Rights Act… but because of protection of incumbents.

David H. Souter:

May I go back to an earlier statement that you made on that point?

Did the court say in so many words that we identify the protection of incumbents with racial gerrymandering?

Penda D. Hair:

Yes, Your Honor.

David H. Souter:

Did it put it neatly somewhere?

Penda D. Hair:

Your Honor, on page 65a of the jurisdictional statement appendix–

David H. Souter:

Okay.

Penda D. Hair:

–The court said that incumbency protection is part of the racial gerrymander, and the court did that because it confused the fact that some African Americans were taken out of the area that normally would have been the most compact version of District 30 in Dallas, for example, but a lot more whites were taken out, and that was error.

John Paul Stevens:

May I ask you a question about your… may I finish my question, please?

May I ask you a question about your understanding of the district court’s holding?

If the district court… if the districts did not have all these strange appendices, they had precisely the same number of majority minority black districts, but they would be nicely shaped instead, assuming that they were given a bad shape because of incumbency protection, under your view, would that be an adequate remedy under the district court’s holding?

Penda D. Hair:

Your Honor, it would not be, and let me tell you why.

That’s a very important question, because there is no Federal constitutional requirement of compactness.

John Paul Stevens:

No, I’m not… really didn’t… I want… what I’m really asking is, what is your interpretation of what the district court would do with those facts?

Penda D. Hair:

Oh, if a minority opportunity district were compact?

John Paul Stevens:

Yes.

Penda D. Hair:

I think the district court would uphold it, but the problem–

John Paul Stevens:

So what is at issue is not the number of minority majority districts, but their shape.

Penda D. Hair:

–But how they look, and I want to make the point that that is very important, because my clients who live in these districts need to be able to bargain and compromise in the political process just like all other communities of interest across the State, and to single out minority opportunity districts and say that they have to have a special Federal rule of compactness that does not apply to majority white districts or any other districts in Texas we believe disadvantages them in the process.

Sandra Day O’Connor:

Well, do you suppose the same rule applies in reverse, that it would not be constitutional for the legislature to protect a white incumbent in a majority white district by fencing out all black voters?

Penda D. Hair:

I think, Your Honor, that would not be constitutional, and that would be race as predominant, but that’s not what happened here.

These are integrated districts that were drawn with bare populations sufficient to satisfy the Voting Rights Act, and then for other reasons they became noncompact.

William H. Rehnquist:

What if the district that Justice O’Connor hypothesized were drawn the same way, not all whites but just enough whites to guarantee the election of the white incumbent?

Penda D. Hair:

Intentionally to–

Yes.

Penda D. Hair:

–To guarantee the election of a white–

William H. Rehnquist:

An intentional adjustment of just the right amount of whites.

Penda D. Hair:

–Your Honor, I believe that that would be subject to strict scrutiny under the Voting Rights Act.

I’m sorry, under the Constitution, and the difference is that where you have the Voting Rights Act, the Voting Rights Act does provide a justification for taking race into account, because we do have racially polarized–

William H. Rehnquist:

We’ve never held that, have we?

Penda D. Hair:

–Well, the Court has not explicitly–

William H. Rehnquist:

No.

Penda D. Hair:

–upheld the Constitution… the constitutionality of the Gingles standard, but it has not been–

William H. Rehnquist:

No, we’ve never held that the Voting Rights Act is a basis that survives strict scrutiny, I don’t believe.

Penda D. Hair:

–Yes, Your Honor, that’s correct.

We would submit that it does.

Antonin Scalia:

Ms. Hair, would you help me out?

I looked at page 65a of the appendix.

What is the precise language you rely on in the opinion on 65a?

I find the court saying, we conclude that the policy of incumbent protection to the extent it motivated the legislature–

–Where you are reading from?

Page 65a of the joint… of the appendix to the jurisdictional statement, which is what counsel cited.

Maybe I got the wrong one.

Penda D. Hair:

Okay.

With regard to District 30… it’s at the top… we conclude that the policy of incumbent protection–

Antonin Scalia:

Right.

Penda D. Hair:

–to the extent it motivated the legislature was not a countervailing force against racial gerrymandering.

Instead, racial gerrymandering was an essential part of incumbency protection.

Antonin Scalia:

Right.

I take that to mean that the court says you can’t… you can protect incumbents, but not by using race as the basis.

Penda D. Hair:

And our position is that the court was legally in error when it said that the fact that Congressmen Frost and Bryant came in and took a huge amount of population, that that was part of a racial gerrymander.

That was solely to get Democratic voters that they had previously represented and black voters, just like a bunch of white voters, got caught up in there.

Antonin Scalia:

They took them as blacks, that’s what this sentence says, that to the extent incumbent protection motivated the legislature, it was incumbent protection achieved by race.

Penda D. Hair:

Your Honor, our position is that–

Antonin Scalia:

That’s how I read it.

Penda D. Hair:

–That… no, if you… the district court committed legal error because it confused taking people… taking Democratic voters with taking people on the basis of race, and that caused it to reach that conclusion.

David H. Souter:

If we find the statement is more ambiguous than you say, should we simply remand this case?

Penda D. Hair:

I think the record is clear, Your Honor, that Congressmen Frost and Bryant came in and took voters of all races that they had previously–

David H. Souter:

All right, but let’s assume that we’ve read that and we still find the court’s statement ambiguous.

Should we remand?

Penda D. Hair:

–Your Honor, yes.

If you cannot find that incumbent protection was not equivalent to race, then I think it should be remanded so that we can establish that in the district court.

William H. Rehnquist:

Thank you, Ms. Hair.

Mr. Troy, we’ll hear from you.

Daniel E. Troy:

Mr. Chief Justice, and may it please the Court–

With regard to the point that was just being made, at page 19 of our brief we cite to what the district court says.

What the district court found exactly was that Texas, quote, repeatedly segregated African American, Hispanic, and Anglo populations by race 1) to further the prospects of incumbent officeholders… I’m adding the one… or 2) to create majority minority congressional districts.

These districts were conceived for the purpose of providing safe seats in Congress for two African American representatives and Hispanic representatives.

Your Honors, the indirect and direct evidence overwhelmingly supports the district court’s finding that race was the predominant factor in the drawing of these bizarre, single race majority districts.

Stephen G. Breyer:

Why did anyone care from a racial point of view, the interest being to elect a minority Congressman or woman?

That can be achieved with a compact district, so why, from that point of view, would anyone care whether the district is noncompact?

What human motive could there be for these irregular shapes other than incumbency protection?

Daniel E. Troy:

Your Honor, what the district court found was that they pursued a maximization policy basically constructing these majority minority single… actually single race majority districts essentially for their own sake, and then race was used as a tool for partisan advantage.

That–

Stephen G. Breyer:

Sorry, I don’t understand.

Stephen G. Breyer:

I’m just trying to get clear on a person who is interested in having a black Congressman or a black Congresswoman would be interested, I assume, many, in having a majority minority district which could be achieved with a compact district.

Now, given that fact, what possible reason could a person who has that interest have–

Daniel E. Troy:

–Well–

Stephen G. Breyer:

–in seeing that it’s an odd shape?

In other words, what would the reasoning be?

I can understand why you might want an odd shape for the purpose of incumbency protection, but I don’t understand what the reasoning would be to want an odd shape for racial reasons.

Daniel E. Troy:

–First of all, Your Honor–

Stephen G. Breyer:

Unless, of course, you think a lot of black people happen to be Democrats, but you have the voting record, and so you can look at the voting records and not worry about race.

Daniel E. Troy:

–First of all, in Harris County what they did was, they were separating the races, Hispanics and blacks, because the communities were demanding their own districts for their own sake.

But with respect to Dallas County what the record shows, Your Honor, is that the architect of the district, Eddie Bernice Johnson, went… tried to create a performing single race majority black district, and the reason why… one of the main reasons why it was not compact, in fact the court found the predominant reason why it was not compact was she testified in the Terrazas v. Slagle litigation that she shed black voters in the South Dallas area, and she testified because they tend to be more transient, they tend to not turn out as well, and so then, in order to preserve the single raceness of the district she went north into Colin County, west into Tarrant County, hither and yon in order to gather as many blacks as possible in order to preserve that as a single race majority district.

That was the overall goal.

Stephen G. Breyer:

In your view, if it were proved… I’m not saying this is this case, but if it were proved beyond any doubt that the only reason that the districts were not compact in shape was to protect incumbents, and that that had nothing to do with race, under those circumstances would these… would such districts be constitutional, even under Miller?

Daniel E. Troy:

Not necessarily, Your Honor, because–

Stephen G. Breyer:

Why not?

Daniel E. Troy:

–Miller says that if the predominant motivation in drawing the district was race, then it’s subject to strict scrutiny, so the only–

Sandra Day O’Connor:

Mr. Troy, can we go back to, then, stage 1.

We have a very compact district.

It has no arms or elbows, but it was created to be a minority… a majority minority district.

Race was the consideration, but it’s got wonderfully compact bounds, but race was why that district was created.

Daniel E. Troy:

–I think–

Sandra Day O’Connor:

Would that be unconstitutional?

Daniel E. Troy:

–I think, Your Honor, that that is, in essence, a hypothetical that would not really arise in part because by definition, if you’re taking into account compactness, contiguity, traditional political subdivisions, you are… race is not the predominant motivation.

It may be an important motivation, but it is one of a number of motivations.

David H. Souter:

Why isn’t it the predominant motivation?

The motivation is to create a majority minority district.

That means race.

Daniel E. Troy:

If you’re creating a compact majority minority district, then you are necessarily taking into account other factors, i.e., compactness, contiguity, traditional subdivisions, and the fact that you’ve got a naturally occurring community of people.

David H. Souter:

So what you’re saying is, it’s okay to do it for racial purposes, and I… and you and I are both assuming that the racial purpose is justified by the Voting Rights Act, I take it, or at least by the… by correcting the Fourteenth Amendment violation.

It’s okay to do that if you do it consistently with normal districting practices.

Daniel E. Troy:

I would say that it is… it is permissible to take race into account in districting so long as it is not the predominant factor.

Daniel E. Troy:

That is what Miller says.

David H. Souter:

But what… aren’t you assuming that what determines whether it’s the predominant factor or not, what determines whether that factor is treated as predominant for purposes of Miller and Shaw, is a function of whether it is created consistently with districting practices as traditionally understood, and if the answer is yes, then it’s not predominant, race is not predominant for Miller purposes.

If the answer is no, it is.

I understood that to be the thrust of your answer.

Daniel E. Troy:

I think if you create it consistent with… with, again, looking for naturally occurring communities, so it is clear that what you’re not trying to do is achieve a certain racial goal, and that’s not your primary… that’s not your predominant–

Ruth Bader Ginsburg:

It is.

Of course it is.

Just in saying, we are going to create three minority majority districts, race is what we are after.

We want three racially determined districts.

We are willing to give up the incumbency and everything else.

We’re willing to subordinate everything to race, and we will have a nice compact district.

Race is so important that we’ll subordinate everything to it, and it will look just fine.

That’s okay under your analysis.

Daniel E. Troy:

–I think that’s… that, if… again, I think if someone swears on a stack of Bibles the only reason I tried to do this was race, and that was… then under Miller it would be subject to strict scrutiny.

Then–

Ruth Bader Ginsburg:

Well, wasn’t that in effect… Texas is candid.

It says, we have a census.

We have additional seats.

We want three minority majority… majority minority districts.

That’s our objective, and we’re not going to disguise it and say, compactness was our objective, but we’re going to achieve our objective consistent with compactness.

Daniel E. Troy:

–But Your Honor, they did not achieve their objective consistent with compactness.

Ruth Bader Ginsburg:

But I’m just asking you, if race is the driving factor–

Daniel E. Troy:

I think–

Ruth Bader Ginsburg:

–is that okay?

Daniel E. Troy:

–If race is the driving factor, it seems to me that under Miller, then it’s subject to strict scrutiny.

David H. Souter:

Then I don’t see why you’re not changing the Miller definition, because the Miller definition of what was predominant was a definition that considered whether the racial motivation subordinated the application of traditional districting principles, and it seems to me that your definition is rejecting the Miller definition.

Daniel E. Troy:

I don’t–

David H. Souter:

In other words, we all recognize that sometimes… that race is going to be used, and sometimes it’s good, and sometimes it’s bad, and we’ve got to have some way to figure out, as a threshold matter, which it is, and Miller says it’s predominant, and it’s going to trigger strict scrutiny, if it subordinates traditional districting practices.

Daniel E. Troy:

–Well–

David H. Souter:

Isn’t that… do you understand Miller to hold that?

Daniel E. Troy:

–Yes.

David H. Souter:

All right.

Then–

Daniel E. Troy:

And I think that’s… it’s… sorry.

David H. Souter:

–let me ask you the next question.

If it can be shown, as a matter of historical fact, that a traditional districting practice includes incumbency protection, then it has to follow, if we’re going to follow Miller, that if the court finds that incumbency protection was the reason for the arms and the squiggles, then it cannot follow from the fact of arms and squiggles that the motivation was predominantly racial within the meaning of Miller.

Is that correct?

Daniel E. Troy:

I don’t think so, Your Honor.

I think–

David H. Souter:

Then where did I go wrong?

Daniel E. Troy:

–It seems to me that–

Antonin Scalia:

Perhaps in assuming that it’s okay to do incumbent protection not by deciding who are Democrats, but by deciding who are blacks.

Daniel E. Troy:

–I totally agree with that.

Antonin Scalia:

That is not–

–So–

–That is making one of the traditional criteria itself depend upon race.

Daniel E. Troy:

I think that–

David H. Souter:

Is that your answer?

Daniel E. Troy:

–I think whatever label you–

[Laughter]

David H. Souter:

No, I want to know.

Is–

Daniel E. Troy:

Yes, that is–

David H. Souter:

–That was a good answer.

[Laughter]

Is that your answer?

All right.

Daniel E. Troy:

–That is my answer.

David H. Souter:

Now, let me ask you a good question.

[Laughter]

David H. Souter:

If, in fact, the incumbency protection is achieved by knowing who is a Democrat, and by drawing the lines according to which neighborhood is Democratic and which neighborhood isn’t, then the fact that those neighborhoods are Democratic happen to be black, and therefore the arms and the squiggles end up including black voters and not white ones, that’s not wrong on your view.

Daniel E. Troy:

Your Honor–

David H. Souter:

Yes or no.

Daniel E. Troy:

–Miller explicitly–

David H. Souter:

Yes or no.

Daniel E. Troy:

–If–

David H. Souter:

Wrong or not wrong?

Daniel E. Troy:

–If it so happens–

David H. Souter:

If the lines are drawn because you’re getting in Democrats, the fact that the Democrats happen to be black is not going to disqualify that as an application of districting practices, and it won’t result in a conclusion that the racial motive was… that the motive was predominantly racial within Miller.

Isn’t that true?

Daniel E. Troy:

–If it… if there is a confluence and a coincidence, and race was not the reason why, race was not the tool for finding out who are Democrats, then certainly, if it just so happens that the district is more black than not and more Democratic than not, that’s okay, but–

David H. Souter:

All right, then why shouldn’t we then send this case back and say to the district court, tell us exactly, based on the evidence, whether, in fact, the discriminations that were made here were made based on political data which happened to disclose a racial composition, or whether it was made on data which was purely racial, and used merely as an unthinking surrogate for a political determination.

Why shouldn’t we ask them to make that discrimination for us, and on which the case would turn?

Daniel E. Troy:

–With respect, Your Honor, I think they have made that determination.

The only data that was put on the computer that was on a block by block level was racial data.

Chris Sharman, who drew… the computer operator sat at the computer and inevitably racial numbers came up no matter what.

Sandra Day O’Connor:

In this case, is the evidence that the computer program design used to draw the lines such that race became a surrogate for whatever was desired in the incumbency protection?

Daniel E. Troy:

I think the record does show that, Your Honor.

The record clearly shows that race was used as a tool for protecting incumbents, and Miller explicitly rejects use of race as a proxy.

Antonin Scalia:

I thought that page 65a, which we just read before, said that.

I thought that’s exactly what it said, that instead, racial gerrymandering was an essential part of incumbency protection, it was the tool for incumbency protection.

Daniel E. Troy:

I agree with that, Your Honor.

Sandra Day O’Connor:

Now, the State didn’t have to do that.

It could have drawn districts in your view that could have majority minority figures for Democratic voters that would enable a black to be elected and an Hispanic to be elected in the two adjacent districts.

Daniel E. Troy:

That’s exactly right, Your Honor.

You can’t use race for mere administrative convenience.

Simply because it’s easier to use race to determine who’s a Democrat does not justify the use of race.

Stephen G. Breyer:

Didn’t it say on the… there must have been a computer printout, and it must have shown, let’s say block by block, who the voters are, and didn’t it have in that computer printout, or whatever they were looking at, the registration of a voter?

Daniel E. Troy:

No, Your Honor.

Stephen G. Breyer:

It didn’t?

Daniel E. Troy:

It did not.

Registration data was not available on that computer.

What was available on that computer below the block level… below the precinct level was only racial data.

At the precinct–

Stephen G. Breyer:

At the block level… at the level of each block they had–

Daniel E. Troy:

–At the level of each block, of each census block they had racial data, and racial data only.

Stephen G. Breyer:

–And–

Daniel E. Troy:

And that was the primary tool that was used for dividing up these districts.

Stephen G. Breyer:

–But what’s the smallest level that they had political party affiliation.

Daniel E. Troy:

The precinct level, and they could only bring up–

Stephen G. Breyer:

Precinct level.

Daniel E. Troy:

–On this computer they could only bring up a single election, and the district court found that that is really not what they used.

In fact, what the district court found was that to the extent that partisan data was used in the process, it was only known to the congressional incumbents and to their staffers, and they might occasionally call up Chris Sharman and tell him some stuff, but by and large he used race as the tool, and the partisan data was not systematically available.

Stephen G. Breyer:

All right, so in your view, if the legislature was trying to create a district to comply with Voting Right Act section 2, and in doing that they used race, and I don’t know how else they would do it, that would be constitutional.

In your view, if, after doing that, they created an odd shape, and the oddness of that shape had nothing to do with race, it was pure… that would be constitutional, but you think that’s not what happened here.

Daniel E. Troy:

That is not… that is exactly xx what happened here.

Stephen G. Breyer:

But are the two principles right?

Are the two principles correct, in your view?

Daniel E. Troy:

The two principles are right, but that is by no means what happened here.

What happened–

Stephen G. Breyer:

All right, the two principles are correct, and then we’d have to argue about what happens here.

Daniel E. Troy:

–In Harris County, they were–

Stephen G. Breyer:

But that is correct, isn’t it, that’s your view?

Daniel E. Troy:

–If there’s absolutely no link between the shape and the racial demographics, then… then race was not the motivating factor.

Stephen G. Breyer:

But a mere correlation is not the kind of link that you’re condemning.

Daniel E. Troy:

Your Honor–

David H. Souter:

I mean, if this case… let’s assume that this judgment stands, and they have the same objective, and for the sake of incumbency protection this time they use whatever data they’ve got, let’s say precinct level data, so that the lines are not going to be quite so fine but you still get a funny looking shape for purposes of incumbency protection, and your incumbency protection data is entirely political Democratic data or Republican data as opposed to race, and it ends up looking something like this, there will still be a factual correlation.

You can say, well, gee, the Democrats seem to be black, and most blacks seem to be Democrats, but you would not find that a violation of the Shaw rule.

Daniel E. Troy:

–If the State accomplished its asserted goal of partisan gerrymandering through the use of nonracial data, then that is permissible, but… but, here they used racial data to accomplish that goal, and that is we think completely forclosed by… for example, if, in Gomillion, someone had said, well, we didn’t fence out the blacks in order to… in order merely for discriminatory reasons, we fenced out the blacks because we wanted to be sure that we could be reelected because we know blacks won’t vote for us, that is completely impermissible.

David H. Souter:

Okay.

Daniel E. Troy:

Similarly, in… this Court has never permitted a township to say, well, we want to maintain property values, and the best way that we could do that is by using… is by using something that is discriminatory in purpose, but our real goal… our real goal is to preserve–

David H. Souter:

Right, it’s going to be bona fide, sure.

Daniel E. Troy:

–Okay.

That’s–

David H. Souter:

May I ask you a different… I guess the next step question.

Let’s assume that the political correlation… let’s assume that the political data in the computer about prior voting patterns is going to be a basis for drawing funny lines, for making these adjustments, and the purpose is incumbency protection.

Assume, secondly, that you’ve got two essentially adjoining Democratic districts.

No matter how you draw the lines, 1 and 2 are both going to be Democratic districts, and they’ve got a choice between drawing the lines in such a way that puts a lot of blacks in a white district and a lot of whites in a black district.

And somebody says, traditionally, if we were worried about the feelings between the French and the Irish, we draw the line in such a way so that the… most of the French could be in a predominantly French ward, and most of the Irish could be in a predominantly Irish ward.

Now we’ve got a situation in which instead of French and Irish it’s black and Hispanic, black and white.

Can they do the same thing for the blacks who want to be in a black district that they could do for the Irish in the old days who wanted to be in an Irish district?

Daniel E. Troy:

–I think if you have two compact, contiguous, naturally occurring–

David H. Souter:

No, it’s not compact in the sense that the lines are nice.

They’re protecting incumbents.

They can protect Democratic incumbents either way, and they’ve got a choice between doing what they used to do for the French and the Irish or the Poles and the Jews or whatever, and the choice is now doing it for blacks and whites.

Can they do the same thing, if, in fact, there is such a tradition?

Daniel E. Troy:

–No, Your Honor, I think it would be impermissible for a State to go block by block dividing up an integrated Polish or Jewish community.

David H. Souter:

Okay.

Can they still do it for the French and the Irish, then?

Daniel E. Troy:

I don’t think so.

I do not think you can go block by block, house by house–

David H. Souter:

So it’s one rule for everybody.

No more of this kind of–

Daniel E. Troy:

–Absolutely.

A religious gerrymander is as impermissible as a racial gerrymander.

Stephen G. Breyer:

–Yes, but–

Daniel E. Troy:

If you’re going–

Stephen G. Breyer:

–if they’re just interested… I mean, a Democratic legislator or city councilman who wants to be reelected I take it is interested only in one thing, people who will vote for him, and he doesn’t care what their color.

So if he sees St. Mary’s Church on the corner, and thinks there must be a lot of Catholics in that neighborhood, and they usually vote for me because they’re a certain political party affiliation, or a State legislator who thinks, I know the synagogue of a certain kind is over there, and he really knows it, and happens by accident to tell somebody that’s what he’s thinking, is that now all contrary to the Constitution?

Daniel E. Troy:

–I think if at a certain point the predominant goal is the separation of races or religions or ethnicities, if that is the tool that is used to accomplish incumbency protection, then that is constitutionally–

David H. Souter:

Yes, but Justice Breyer’s example is different from mine.

In mine, I’m talking about making the Irish or the Poles or the Jews or the Wasps or what not happy to be together.

In his, the sole motivation is incumbency protection.

Why isn’t your answer different from him from what it was for me?

Daniel E. Troy:

–Well, I think I gave the answer on… the motivation… the motivation does not matter if the means is race or ethnicity.

This Court has said it doesn’t matter what your ultimate goal is, you cannot use certain forbidden tools.

Race is forbidden by the Fourteenth Amendment to be used as a tool–

David H. Souter:

But in his example the people… St. Mary’s gets in not because they’re Catholics but because they’re Democrats.

Daniel E. Troy:

–Well, that’s in essence–

David H. Souter:

He knows that.

Daniel E. Troy:

–a question of fact–

David H. Souter:

He knows that.

Daniel E. Troy:

–for the district court as to whether or not the predominant motivation was whether they were Democrats or whether they were blacks.

David H. Souter:

So if, in fact, the Court says they only wanted the St. Mary’s Parish in there because they were Democrats, no problem on your theory.

Daniel E. Troy:

Again, it’s a question of fact as to what–

David H. Souter:

Yes, but I mean, if that’s what the fact finding is, that’s not… that is not suspect on your theory, right?

Daniel E. Troy:

–It is not suspect to get Democrats.

It is suspect to use race as a tool or religion as a tool to tell who is of one party affiliation or another because race is immutable and politics are not, and the use of race is so dangerous that this Court has said that it should not be used unless there is a compelling governmental interest and it is being used in a narrowly tailored way.

Ruth Bader Ginsburg:

But Mr. Troy, this is the part of your argument that I have great difficulty grasping.

If race were used alone and nothing else, that would have been all right.

If the districts had been created so that they would be majority minority districts, and then the white incumbents were not part of the picture, so we had a district determined solely by race and not by incumbency, and not by anything else, that would be all right.

But once you intrude something that’s nonrace, then it’s unconstitutional.

That’s the part that I don’t understand, the logic of that, but you conceded, because that was the first step in the argument, that if… that the State has a goal, wants three majority minority districts, a racial goal, that’s okay.

Daniel E. Troy:

Well, Your Honor–

Sandra Day O’Connor:

Counsel, did you concede that–

Daniel E. Troy:

–I don’t really think I conceded that.

Sandra Day O’Connor:

–or did you say it would require strict scrutiny if that were the case?

I thought that was what I understood your response to be.

Daniel E. Troy:

Thank you, Your Honor.

That’s what I thought I said.

Sandra Day O’Connor:

Have you made some other response to Justice Ginsburg that I missed?

Daniel E. Troy:

No, I don’t think I did.

I think–

John Paul Stevens:

No, I thought you said in the hypothetical that it would be compactness and other factors that would be in addition to race, and that’s why you say that–

Daniel E. Troy:

–Your Honor, I think if you start out and race is your only goal, then maybe the Voting Rights Act–

John Paul Stevens:

–You said if the district were compact, the fact that they might have been motivated by an interest in getting two or three majority minority districts would not have invalidated the plan.

You did say that, didn’t you?

Daniel E. Troy:

–Let me explain.

John Paul Stevens:

I thought that’s–

–Did you say that or not?

Let me find out, did you say that or not?

If they were compact districts, contiguous, nicely square in every case, but it was perfectly clear that there was a motive to get two or three majority minority districts, did you not say that would be okay?

Daniel E. Troy:

I don’t think so.

John Paul Stevens:

Okay.

Daniel E. Troy:

And if I did, perhaps I misspoke.

John Paul Stevens:

You did, then.

Daniel E. Troy:

Okay, I misspoke.

[Laughter]

I apologize.

If your goal, your dominant goal is racial, then strict scrutiny applies, okay.

Now, it may well be–

Antonin Scalia:

So that in–

–What does the statute require, then?

I mean, I certainly agree with you, I had understood our Constitution to prevent the use of race as a surrogate for… however good the objective may be, you can’t use it, but then what does the… doesn’t the Voting Rights Act, or our interpretation of it make the opposite assumption?

How am I to reconcile the two?

Doesn’t it assume that in order to have what is being called here minority opportunity you need to herd minority voters together because they will all vote the same way?

Isn’t that the assumption of our interpretation of the act, or of the act itself?

Daniel E. Troy:

–I don’t think so, Your Honor.

Antonin Scalia:

It isn’t.

Well, then, I don’t–

Daniel E. Troy:

I think the Voting Rights Act prohibits–

Antonin Scalia:

–Why are they worried about creating minority… majority minority districts in order to comply with the act, then?

Daniel E. Troy:

–I think the Department of Justice’s maximization policy was hanging like a Sword of Damocles over this entire process.

They went in with the assumption… and this case is sort of Miller but without the Department of Justice playing its heavy hand.

They went in with the assumption that so long as they maximized they would be okay with the Department of Justice, and therefore they could do anything else they want, use race as a tool for purposes of incumbency protection, and that they did not have to narrowly tailor these districts to make them comport to requirements of section 2, if, indeed, section 2 is implicated.

But section 2 only requires geographically compact districts.

These are not geographically compact districts.

David H. Souter:

All right, but why, then–

–But what if they were?

–isn’t your answer to Justice Stevens–

–Yes, but what if they were?

Would that make any difference?

Daniel E. Troy:

It seems to me if the Voting Rights Act requires you to draw these districts–

John Paul Stevens:

I’m just asking you, if they were compact, would that make any difference?

Daniel E. Troy:

–If the Voting Rights Act required you to draw–

John Paul Stevens:

No, no, no.

No, I’m just saying, in this case, if we had compact districts such as they started out with before they got into all the incumbency protection, would the case be any different in your view, and I’ll give you a second question.

You can give me the answer to both.

Under the district court’s reasoning, if they did create the same number of majority minority districts but they had gone back to where they had a few more Republican districts and a few less Democrat districts, as I think would make the difference, would that have been all right?

Daniel E. Troy:

–I don’t think I follow your second question.

John Paul Stevens:

Well–

Daniel E. Troy:

Sorry.

John Paul Stevens:

–What is the remedy that the district court is requiring?

They have to redraw the districts.

Daniel E. Troy:

They have to redraw the districts.

John Paul Stevens:

In redrawing them, can they continue to have the same number of majority minority districts but differently shaped?

Daniel E. Troy:

Your Honor, we do not think that under the Voting Rights Act they can create single race majority districts here because the communities in question do not live in a sufficiently geographically compact area to require drawing of single race majority districts, and that is what they tried to do here.

They set out to draw single race majority districts.

Stephen G. Breyer:

Can you answer the first question that Justice Stevens asked?

Daniel E. Troy:

I’m sorry.

Stephen G. Breyer:

And the reason… the reason is, at least I break this question into two parts, or maybe three, and to get to an answer I have to have your opinion on just his first question, which was, if these were compact, and drawn to comply with section 2, and race was used… of course, section 2 is about race… wouldn’t that be a compelling interest?

I agree that Justice O’Connor says under Miller it’s a compelling interest.

Would that not be a compelling interest?

Daniel E. Troy:

Oh, yes.

Stephen G. Breyer:

Yes.

Daniel E. Troy:

We believe that if section 2–

Stephen G. Breyer:

All right.

So you then do concede–

Daniel E. Troy:

–Absolutely.

Stephen G. Breyer:

–which is what I thought at the beginning–

Daniel E. Troy:

If section 2 required these districts to be–

Stephen G. Breyer:

–All right.

Daniel E. Troy:

–Yes.

Stephen G. Breyer:

So if they’re drawing them now in order to comply with section 2–

–Why do you concede that, counsel?

[Laughter]

The Court has never held that compliance with the Voting Rights Act is a compelling State interest.

Daniel E. Troy:

That is true, the Court has never held that, but–

Stephen G. Breyer:

May I ask you an alternative–

–I think he’s finishing answering my question.

Oh, I’m sorry.

Daniel E. Troy:

–We believe that in trying to have the State avoid the horns of a dilemma, a dilemma which, by the way, we think they falsely posit because they overinterpret the Voting Rights Act in far too broad a way, but we think that if you interpret the Voting Rights Act in a constitutional way to say that it simply prohibits discriminatory packing and cracking, then avoiding discriminatory packing and cracking can be a compelling governmental interest.

But it turns upon, Your Honor, how you interpret the Voting Rights Act, and we think that certainly if the State sought to comply with their interpretation, or with the Department of Justice’s maximization policy, then it would never be… it could not be a compelling governmental interest, so it depends upon how you interpret the Voting Rights Act.

David H. Souter:

All right, may I go back to the Miller definition.

I understood you to say a moment ago that if the motive was simply to create a majority minority district, and we didn’t know anything more than that, that that would, in fact, be unconstitutional.

Now let me add something to what we know.

Let us assume that in creating that majority minority district, number 1, the motive was to comply with the Voting Rights Act, and number 2, that in fact the district shape that came out of that process was a shape which was consistent with the shape that traditionally gets arrived at in districts when traditional districting practices are followed, as, for example, in Justice Stevens’ case, it is a compact district.

Daniel E. Troy:

It–

David H. Souter:

If that is… if those three facts are what we know, is it fair to say under the Miller definition of what is a subordination of districting to race, that we would not have an apparent case of subordinated districting to race?

That would be okay under the Miller definition, and it would not trigger strict scrutiny.

David H. Souter:

Is that correct?

Daniel E. Troy:

–If you start out and your goal is to create… it seems to me that you can’t really have it both ways.

If you want to say, we are going to draw remedial districts to comply with the Voting Rights Act, then you’re almost by definition, I believe, going to be in strict scrutiny, because you are using race for a remedial purpose.

Then the question–

David H. Souter:

Then what happens if… let’s assume… all right, if I take that example, then it seems to me I am varying Miller, because Miller didn’t say that any use of race, whether for compliance of section 2 or any other, is wrong.

Miller says it’s only wrong when it is subordinated to traditional districting practices.

Miller puts a limitation on it, and it seems to me that your answers to us do not recognize that limitation, so that if we were to agree with you, the Court would have to expand Miller.

Daniel E. Troy:

–I think, Your Honor, that if you set out to create a racial goal, and your goal is to comply with the Voting Rights Act, and that is a remedial statute, and your purpose in complying with it is remedial, then it seems to me that your overwhelming purpose, because we’re talking about the use of race here, must be remedial, and that–

Antonin Scalia:

All right–

–It depends on what Miller means by subordinated.

I suppose one could say that if you start out with objection number 1 to create a majority minority district, that is your primary goal.

Everything else, even though you follow other criteria, could be regarded as subordinated to that.

Daniel E. Troy:

–That–

Antonin Scalia:

So that’s your starting point.

Daniel E. Troy:

–I think that’s right, that is your starting point.

David H. Souter:

All right, but that’s not what Miller says, is it?

Miller says that it’s predominant if it subordinates traditional districting practices to race, and I think what you’re saying is, whenever you start out with the motive of creating a majority minority district, you in fact trigger strict scrutiny, and by definition you have always… you have subordinated every other consideration to race.

Is that your answer?

Daniel E. Troy:

If you start out with–

David H. Souter:

I think that’s what you’re saying.

Daniel E. Troy:

–Yes.

David H. Souter:

Okay.

Daniel E. Troy:

If you start out with the goal–

David H. Souter:

So isn’t it–

Daniel E. Troy:

–of accomplishing race, and you use race as… at all times to make sure… abandoning compactness, abandoning requirements of the Voting Rights Act–

David H. Souter:

–No, no, no, let’s assume you don’t abandon them.

You end up with a compact… we get into court.

The redistricting is done.

It goes back to Justice Stevens’ question.

You’ve got a compact district.

David H. Souter:

The traditional districting principles have, in fact, apparently been honored here.

Strict scrutiny or not?

Daniel E. Troy:

–Strict scrutiny.

David H. Souter:

So I think… is it fair to say, then–

Daniel E. Troy:

If race was the predominant factor in drawing–

David H. Souter:

–Oh, I grant you that.

Daniel E. Troy:

–strict scrutiny.

David H. Souter:

Is it fair to say, then, that you are in fact asking us to recognize a cause of action which is broader than Miller recognized, because otherwise that language in Miller did not mean what it said.

It was in fact a misspeaking by the Court.

Daniel E. Troy:

I think, Your Honor, if race is the predominant motivation, and you look–

David H. Souter:

No, but that’s the question.

Daniel E. Troy:

–Right.

David H. Souter:

Miller says, in deciding whether it is predominant or not, you look to whether it has excluded the application of traditional districting principles.

If it hasn’t excluded it, then either it isn’t predominant, or you’ve got a pretty tough row to hoe to show that it is, and you’re saying, never mind whether the result is consistent with traditional districting principles or not, and that’s why I say I think you’re asking us to expand on Miller.

Daniel E. Troy:

I don’t think so, Your Honor, because Miller talks about the indirect and the direct evidence, and in this case–

Sandra Day O’Connor:

Well, I guess you don’t have that here, do you?

I thought the finding was these districts did not follow normal compactness and, indeed, are quite irregular, so you don’t have the hypothetical here, I assume.

Daniel E. Troy:

–That is certainly true, Your Honor.

Texas tries to say that their only districting principle ever has been incumbency protection, and the district court found as a matter of fact that Texas had traditionally adhered to and followed other traditional districting principles and it had, in fact, abandoned compactness.

William H. Rehnquist:

The three judges of the district court were all Texas judges here?

Daniel E. Troy:

They were all Texas judges.

Stephen G. Breyer:

The thing I wonder about the particular finding on page 65a is, I’ve got the point that if these were compact maybe you apply strict scrutiny, that section 2 perhaps we’d agree would justify it.

If they depart from the compactness solely for nonracial reasons, I think we agree, but I’m not certain, that solely for nonracial reasons it would be okay, and then the question is, what did they do here, and what he says is, in order to protect incumbents other African American voters were deliberately fenced out.

But what it doesn’t say is whether those African American voters were fenced out because they were African Americans or because there was an inference about their voting behavior in respect to one incumbent or another–

Daniel E. Troy:

If I–

Stephen G. Breyer:

–and wouldn’t that be key as to why they were fenced out, just as you’ve said you might have Jews in a district knowing that they’re Jews and likely to vote Democrat, and you say okay, that’s all right, if the reason is that they’re likely to vote Democrat, and isn’t this silent as to what the reason that the African American voters were or were not fenced out?

Daniel E. Troy:

–Your Honor, in this case the African American and the Hispanic communities in Harris County were simply pulled apart for their own sake.

That is what the district court found.

They were pulled apart because the Hispanic community said, we want our own district, and we don’t care about Gingles, we don’t care about compactness, we want our own district.

Antonin Scalia:

Mr. Troy, I didn’t understand you to say what Justice Breyer just said.

Antonin Scalia:

Maybe you agree with him.

I didn’t understand you to say that you could include, let’s say Jews in a district because you know that Jews will vote Democratic.

Daniel E. Troy:

In fact, I did not say that.

I said you cannot–

Antonin Scalia:

I thought you said just the opposite.

Daniel E. Troy:

–In fact, I did.

I said that neither race nor religion may be used as a proxy for determining political affiliation.

Stephen G. Breyer:

So then that means you do favor, or somebody could bring a lawsuit in any kind of city council election, any of the thousands of elections in the United States and try to show that what the council had in mind was, it… all it knew was, this is an Irish neighborhood, this is a Catholic neighborhood, this is a some other neighborhood, and we’re only interested in whether they vote Democrat or Republican, but if you could show that’s in the councilman’s mind at the time and he’s making that inference, all this would become unconstitutional, thrown into the Federal courts, et cetera.

Daniel E. Troy:

The reason why I don’t think that’s going to happen, Your Honor, is because of compactness, contiguity, respect for political subdivision.

What I understand what happens in city councils throughout the country is they take a look at particular neighborhoods, particular areas of interest, where people have things in common like the schools they go to, the places they shop, the water supply, the potholes in the streets.

What they did in this case was, they abandoned that and they said we are going to, particularly in Harris County, we’re going to separate the races.

We’re going to take someone who lived in the northwest corner of the city and who’s always voted in District 18, who’s Hispanic, we’re going to take Al Vera and we’re going to lump him with the Hispanics in the southwest… in the southeastern part of the city because he is Hispanic.

That seems to me to not respect traditional principles and to be affirmatively unconstitutional.

And Your Honors, in Texas what the court found, in Dallas what the court found is that simply, there was capitulation to a demand by the Dallas black community that… I’m quoting the Department of Justice’s narrative, the narrative to the Department of Justice.

This is what Texas told the Department of Justice, that

“the Dallas black community insisted that a safe black district be drawn that had a total black population of at least 50 percent. “

That’s at the joint appendix at 106.

Your Honors, we’ve gotten off on the… because we’ve been entertaining hypotheticals we’ve gotten far away from what happened in this case, and what happened in this case was that race was used as a tool for incumbency protection only secondarily.

Primarily, there was this maximization policy of the Department of Justice that everybody knew about.

They… Eddie Bernice Johnson specifically said, my policy was, if it could be drawn it must be drawn, and all other concerns were subordinated to that, and so that is what happened here, and that, we submit, is unconstitutional.

If there are no further questions–

John Paul Stevens:

I have one if you do have a minute left.

Supposing you started out with three compact districts that were contiguous, and race was one of the reasons for drawing them that way, but if you drew them that way, the Democrats were in control, they found they would create a few more Republican seats than they wanted to, so they redrew them with squiggles to get more Democrat seats… forget about incumbents, just party politics, simply… would that be a permissible reason to do it, in your view?

Daniel E. Troy:

–I’m sorry.

John Paul Stevens:

Would that be a permissible reason to redraw and get unattractive districts in order to protect the number of Democrats, as opposed to the number of incumbents?

Daniel E. Troy:

I’m not quite sure I caught your first hypothetical, and my time is up, but I’d be happy if the Chief Justice will permit me to–

William H. Rehnquist:

Just go ahead and answer.

Daniel E. Troy:

–The first part–

John Paul Stevens:

The hypothetical is that you start with compact districts that you would say would barely pass muster, even though race was an important factor in picking them up, but you get into noncompactness and gerrymandering in districts like this not to protect incumbents as such, but to make sure that the Republicans, who do not control the legislature, won’t get too many seats.

Daniel E. Troy:

–I think if your motivations are political, then your motivations are political.

Daniel E. Troy:

If your motivations are racial, your motivations are racial, and if your motivations are–

John Paul Stevens:

The question is whether a political motivation would be a justification.

Daniel E. Troy:

–Political… for noncompactness?

Yes.

Daniel E. Troy:

It can be, yes.

Antonin Scalia:

I think he’s asking for noncompactness on the basis of race.

Daniel E. Troy:

Noncompactness on the basis of race, no.

If it’s noncompactness… if–

William H. Rehnquist:

Well, look, your time is up.

Daniel E. Troy:

–If there are just whites, and it’s just a Democrat, and you jiggle the lines, that’s okay.

William H. Rehnquist:

I think you’ve answered the question, Mr. Troy.

The case is submitted.