March 13, 2009

Cross-over Districts and Shaw Claims

I've already blogged about Justice Kennedy's reliance on the canon of constitutional avoidance in his recent plurality opinion in Bartlett v. Strickland. I was just looking over that discussion in the case again, and I was struck by the sentence below that I have put in boldface:

    To the extent there is any doubt whether s 2 calls for the majority-minority rule, we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause. See Clark v. Martinez, 543 U.S. 371, 381-382, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (canon of constitutional avoidance is "a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts"). Of course, the "moral imperative of racial neutrality is the driving force of the Equal Protection Clause," and racial classifications are permitted only "as a last resort." Richmond v. J.A. Croson Co., 488 U.S. 469, 518, 519, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (KENNEDY, J., concurring in part and concurring in judgment). "Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters-a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire." Shaw v. Reno, 509 U.S. 630, 657, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). If ยง 2 were interpreted to require crossover districts throughout the Nation, "it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions." LULAC, 548 U.S., at 446, 126 S.Ct. 2594 (opinion of KENNEDY, J.); see also Ashcroft, 539 U.S., at 491, 123 S.Ct. 2498 (KENNEDY, J., concurring). That interpretation would result in a substantial increase in the number of mandatory districts drawn with race as "the predominant factor motivating the legislature's decision." Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995).

A substantial increase? Under the Court's Shaw jurisprudence, I don't think that's right. If section 2 mandated the creation of cross-over districts in certain circumstances (such as those meeting the test put forward by Justice Breyer in his dissent), and if the Court stuck with its precedent that compliance with section 2 is a compelling interest that justifies taking race into account in redistricting, wouldn't that defeat these Shaw claims? To get to Justice Kennedy's position, I think it would have to be the case that a majority of the Court would no longer see compliance with Section 2 as a compelling interest that would justify drawing a district that would otherwise violate Shaw. That may in fact be the case on the current Court, with Justice O'Connor gone. But the point goes unsaid in Justice Kennedy's Bartlett opinion.

Posted by Rick Hasen at March 13, 2009 11:47 AM