James Blumstein has posted this draft on SSRN (forthcoming, Rutgers Law Journal). Here is the abstract:
In the opening sentence of her opinion for the Court in Shaw v. Reno, the North Carolina racial gerrymander case, Justice O’Connor observed that the case “involve[d] two of the most complex and sensitive issues” that the Supreme Court has had to confront: “the meaning of the constitutional ‘right’ to vote, and the propriety of race based state legislation designed to benefit members of historically disadvantaged racial minority groups.” Had she stopped there, Justice O’Connor would have had consensus within the Court. But she went on to grapple with these issues and has spurred further discussion and debate about race and voting rights–a topic that had already gained political center stage when President Clinton withdrew his nomination of Professor Lani Guinier to serve as Assistant Attorney General for Civil Rights.
This article will analyze and evaluate Shaw in its doctrinal context and then examine some still unresolved questions. The Supreme Court’s resolution of those issues will eventually determine whether Shaw is an analytically significant and doctrinally influential case or whether it reflects a response to a unique set of substantive and procedural circumstances that are non-replicable.
The article begins in Section II with a discussion of the procedural context of the Shaw case and a consideration of the substantive and practical implications of the district court’s decision. In Section III, the article then examines the nature of the plaintiffs’ claim by explaining the race nondiscrimination paradigm, concluding that the Court was correct in holding that vote dilution and race discrimination are analytically distinct theories with independent lines of case law supporting each one. The precedent-oriented dissent of Justice White is analyzed and critiqued in depth. The conclusion is that Justice White erroneously conflates the vote dilution and the race discrimination lines of cases.
The principle-oriented dissent of Justice Souter is examined in detail and found to be both intellectually honest and substantively startling. Justice Souter argued that race-based Equal Protection claims involving districting should be treated differently than the same claims in other contexts. His rationale for this categorical approach was that race cannot be avoided in legislative districting, and the use of race does not disadvantage any individual because of race. The article concludes that Justice Souter’s approach is excessively tolerant of the use of race and in considerable tension with the nondiscrimination principles emanating from Brown. Further, Justice Souter’s observation that race is customarily a part of the districting process does not explain why that fact, if such it be, should be constitutionally legitimized. To the extent that Justice Souter’s views were influenced by his understanding of the Voting Rights Act, the article concludes that neither Section 5 nor Section 2 of that Act supports Justice Souter’s analysis.
Finally, in Section IV, the article examines five issues left unresolved by Shaw. It concludes that Shaw cannot sensibly and with doctrinal integrity be limited to weird districts. Under the principle of racial reciprocity, it concludes, any intentional use of race should trigger strict scrutiny unless government can show that the same districting decision would have been taken in the absence of racial considerations. The article concludes by considering how the Shaw compelling interest. standard should be applied, analyzing the nature of an appropriate “compelling interest,” how the “narrow tailoring” inquiry should be addressed, and how the burden of proof should be allocated under strict scrutiny.