I’m struck by the similarity of the underlying factual contexts in these two cases. Only one Justice on the current Court, Justice Thomas, was on the Court that decided Shaw, and the similarity is not apparent from the opinion in Shaw. But for those of us who were engaged with the issues in Shaw at the time, the similarity is hard to miss.

The central legal question in both cases is this: when a State has justifiable reason to create a remedial VRA district, what constitutional constraints, if any, apply to the way that district is designed? 

In Callais, Louisiana believed it had to create a second VRA district to comply with federal court decisions that required such a district. The federal court had identified a region of the state in which, it found, a reasonably configured second VRA district could be created. But the Republican legislature preferred to draw that district in a somewhat different area of the state, in order to protect important Republican incumbents. The state designed a (less compact) district to be majority black, to comply with the VRA, but political reasons drove the decision to locate that district in specific areas of the state.

You can substitute North Carolina for Louisiana and Democratic for Republican and you’ll get the same story in Shaw. In Shaw, North Carolina believed it had to create a second VRA district to comply with federal rulings, this time from the Department of Justice (DOJ). The DOJ had identified a region of the State in which a reasonably configured second district could be drawn.  But the Democratic legislature wanted to protect an important incumbent who represented that area. So just as in Callais, the state designed a district a district to be majority black — the highway district, as it was called — to comply with the VRA, but political reasons drove the decision to locate that district in specific areas of the state.

It’s easy to miss the role that political considerations played in NC’s design of that district because the majority opinion does not address that issue and the dissent mentions it only in a footnote.  This is the relevant passage from note 10 in Justice White’s dissent:

This appears to be what has occurred in this instance. In providing the reasons for the objection, the Attorney General noted that “[f]or the south-central to southeast area, there were several plans drawn providing for a second majority-minority congressional district” and that such a district would have been no more irregular than others in the State’s plan. See App. to Brief for Federal Appellees lOa. North Carolina’s decision to create a majority-minority district can be explained as an attempt to meet this objection. Its decision not to create the more compact southern majority-minority district that was suggested, on the other hand, was more likely a result of partisan considerations. Indeed, in a suit brought prior to this one, different plaintiffs charged that District 12 was “grossly contorted” and had “no logical explanation other than incumbency protection and the enhancement of Democratic partisan interests …. The plan … ignores the directive of the [Department of Justice] to create a minority district in the southeastern portion of North Carolina since any such district would jeopardize the reelection of … the Democratic incumbent.” App. to Juris. Statement, O. T. 1991, No. 91-2038, p. 43a (Complaint in Pope v. Blue, No. 3:92CV71-P (WDNC)). With respect to this incident, one writer has observed that “understanding why the configurations are shaped as they are requires us to know at least as much about the interests of incumbent Democratic politicians, as it does knowledge of the Voting Rights Act.” Grofman, Would Vince Lombardi Have Been Right If He Had Said: ”When It Comes to Redistricting, Race Isn’t Everything, It’s the Only Thing”?, 14 Cardozo L. Rev. 1237, 1258 (1993). [italics added]

The one significant difference in the two contexts is that the remedial district in Shaw was in a completely different area of the state than the federal actor (there, the DOJ) had used as its basis for finding NC had violated its VRA obligations. The district at issue in LA includes about 70% of the population in the area that the federal actor (here, the federal court) had used as its basis for concluding LA had violated its VRA obligations.

I’m not going to go through here the whole analysis of how this difference does or should affect a full treatment of the doctrinal issues in Callais, which would require too much space to work through the quagmire of whether race “predominated” here and, if so, how the strict scrutiny analysis should be applied. Based on the oral argument, I also don’t have a confident view about how the Court is likely to decide the case.

But I wanted to note that the mix of race and politics in the two cases is very similar and that this might not be obvious to those who don’t recall the full context of Shaw. When federal authorities require partisan state legislatures to draw remedial VRA districts, politics ends up playing a significant role in where and how those districts are designed.