Jack & Jill Assist Legal Defense Fund

    Nos. 94-805, 94-806, and 94-988

Sn tfj? Supreme Court of tf)t Ifiuteb £s>tatrs
October Term , 1995

George W. Bush, Governor of Texas,
ET AL., APPELLANTS 

V.
Al Vera , et al.

Re v . William Lawson, et al., appellants
v.

Al Vera , et al.

U nited States of America, appellant
v.

Al Vera , et al.

ON APPEAL FROM THE UNITED STATES DISTRICT  
COURT FOR THE SOUTHERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES

Drew S. Days, III 
Solicitor General 

Deval L. Patrick 
Assistant Attorney General 

Paul Bender 
Deputy Solicitor General 

Irving L. Gornstein 
Assistant to the Solicitor General 

Steven H. Rosenbaum 
Samuel R. Bagenstos 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 514-2217



QUESTION PRESENTED
Whether Districts 18, 29, and 30 in Texas’s congres­

sional redistricting plan are narrowly tailored to further a 
compelling in terest.

(I)



PARTIES TO THE PROCEEDING
Plaintiffs are A1 Vera, Edward Blum, Edward Chen, 

Pauline Orcutt, Barabara L. Thomas, and Kenneth 
Powers.

Defendants are George W. Bush, Governor of the State 
of Texas; Bob Bullock, Lieutenant Governor; Pete Laney, 
Speaker of the House of Representatives; Dan Morales, 
Attorney General; and Antonio Garza, Jr., Secretary of 
State.

Defendant-Intervenors are Rev. William Lawson, Zollie 
Scales, Jr., Rev. Jew Don Boney, Deloyd T. Parker, Dewan 
Perry, Rev. Caesar Clark, David Jones, Fred Hofheinz, 
Judy Zimmerman, Robert Reyes, Angia Garcia, Robert 
Anguiano, Sr., Dalia Robles, Nicolas Dominguez, Oscar T. 
Garcia, Ramiro Gamboa, League of United Latin Ameri­
can Citizens, and the United States.

II



TABLE OF CONTENTS

Opinion below..........................................................................  1
Jurisdiction ................................................  2
Constitutional and statutory provisions involved ................  2
Statement ............................................   2
Summary of argument ..........................................................  14
Argument:

Introduction ...................       17
The State’s redistricting plan satisfies strict scrutiny .... 18
A. The State had a compelling interest in drawing one 

black opportunity district in Dallas County and one 
black and one Hispanic opportunity district in 
Harris County in order to comply with Section 2 of
the Voting Rights Act .....................................    19

B. The State also had a compelling interest in drawing
one black opportunity district in Dallas County and 
one black and one Hispanic opportunity district in 
Harris County in order to counteract the effects of 
racially polarized voting ........      32

C. Districts 18, 29, and 30 are narrowly tailored to
achieve the State’s compelling interests..................  35

Conclusion .....................................      46

TABLE OF AUTHORITIES
Cases:

Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097
(1995) ....................................................................  18, 21, 33, 35

Beare v. Smith, 321 F. Supp. 1100 (S.D. Tex. 1971), 
aff’d sub nom. Beare v. Briscoe, 498 F.2d 244 (5th
Cir. 1974) .........    33

Bob Jones Univ. v. United States, 461 U.S. 574 (1983) . 21
Burns v. Richardson, 384 U.S. 73 (1966) ...............  40, 41, 43
Chapman v. Meier, 420 U.S. 1 (1975) ............................. 40

Page

( H I )



IV

City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989) ...............................................................  21, 23, 33, 34, 35

City of Rome v. United States, 446 U.S. 156 (1980) .....  21, 22
Gaffney v. Cummings, 412 U.S. 735 (1973) ...................  41
Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir.

1990), cert, denied, 498 U.S. 1028 (1991)....................... 45
Growe v. Emison, 113 S. Ct. 1075 (1993)..............  22, 24, 25, 40
Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La. 1993),

vacated and remanded, 114 S. Ct. 2731 (1994) .............  36
Jeffers v. Clinton, 756 F. Supp. 1195 (E.D. Ark. 1990),

aff’d mem., 498 U.S. 1019 (1991) ....... ...........................  37
Johnson v. DeGrandy, 114 S. Ct. 2647 (1994).......... 15, 24, 25
Johnson v. Transportation Agency, 480 U.S. 616

(1987) ...............................................................................  23
Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 1984) . 22
Karcher v. Daggett, 462 U.S. 725 (1983).......................  41
Katzenbach v. Morgan, 384 U.S. 641 (1966) .................  21
Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), cert.

denied, 471 U.S. 1135 (1985) .................................... ...... 37, 45
Lipscomb v. Wise, 399 F. Supp. 782 (N.D. Tex. 1975), 

rev’d, 551 F.2d 1043 (5th Cir. 1977), rev’d, 437 U.S.
535 (1978) ...........    27

Local 28 ofFSheet Metal Workers’ Int’l Ass’n v. EEOC,
478 U.S. 421 (1986) .......................................................... 21

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) .......  21
McGhee v. Granville County, 860 F.2d 110 (4th Cir.

1988) ................................................................................  31
Miller v. Johnson, 115 S. Ct. 2475 (1995) .....  17, 19, 22, 23,

36, 39, 40, 42, 45
Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994), cert.

denied, 115 S. Ct. 1795 (1995) ......................................... 34
Nixon v. Condon, 286 U.S. 73 (1932) .................. ..........  3, 33
Nixon v. Herndon, 273 U.S. 536 (1927) ......................... 3, 33
Oregon v. Mitchell, 400 U.S. 112 (1970) ......................... 21
Personnel Administrator v. Feeney, 442 U.S. 256 

(1979) ...............................................................................  45

Cases—Continued: Page



V

Rybicki v. State Bd. of Elections, 574 F. Supp. 1082
(N.D. 111. 1982) ................................................................  45

Seaman v. Upham:
536 F. Supp. 931 (E.D. Tex.), vacated and remanded,

456 U.S. 37 (1982) ..................................................  9
No. P-81-49-CA (E.D. Tex. Jan. 30, 1984) .................  28

Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994),
probable juris, noted, 115 S. Ct. 2639 (1995) ............. 31, 36, 39

Shaw v. Reno, 113 S. Ct. 2816 (1993)......................  22, 35, 36
Smith v. Allwright, 321 U.S. 649 (1944) ........................ 3, 33
South Carolina v. Katzenbach, 383 U.S. 301 (1966) .. 19, 21, 22
Terrazas v. Slagle:

789 F. Supp. 828 (W.D. Tex. 1991), aff’d, 112 S. Ct.
3019, 113 S. Ct. 29 (1992) ........................................ 12

821 F. Supp. 1162 (W.D. Tex. 1993)........................... 12
Terry v. Adams, 345 U.S. 461 (1953)............................  3, 33
Texas v. United States, 384 U.S. 155 (1966).................  3, 33
Thornburg v. Gingles, 478 U.S. 30 (1986) . 13, 15, 22, 24, 25, 31
United Jewish Organizations of Wi l Hams burgh, Inc. v.

Carey, 430 U.S. 144 (1977) .................. ..........................  34
United, States v. Marengo County Comm’n, 731 F.2d

1546 (11th Cir. 1984)........................................................ 22
United States v. Paradise, 480 U.S. 149 (1987).....  18, 21, 35
Upham v. Seamon, 456 U.S. 37 (1982) .......................... 31, 40
Voinovich v. Quilter, 113 S. Ct. 1149 (1993) ..................  25, 40
White v. Regester, 412 U.S. 755 (1973)....................  3, 27, 33
White v. Weiser, 412 U.S. 783 (1973) .............................  40
Williams v. City of Dallas, 734 F. Supp. 1317 (N.D.

Tex. 1990) .......................................................................  7, 27
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 

(1986) ...............................................................................  23, 42
Constitution and statutes:

U.S. Const.:
Amend. XIV .................. ............................  2, 14, 21, 22, 33

§ 1 (Equal Protection Clause) ............................ 2, 42, 44
§ 5 ................................... .........................................  21

Cases—Continued: Page



VI

Constitution and statutes—Continued: Page
Amend. X V ...........................................................  14, 21, 22

§ 2 .............................................................................  21
Voting Rights Act of 1965, 42 U.S.C. 1973 et seq.:

§ 2, 42 U.S.C. 1973 .................................................. passim
§ 2(a), 42 U.S.C. 1973(a) ...........................................  20
§ 2(b), 42 U.S.C. 1973(b) ...........................................  20, 31
§ 5, 42 U.S.C. 1973c .....................................  2, 3, 11, 19, 20

Miscellaneous:
S. Rep. No. 295, 94th Cong., 1st Sess. (1975) ...................  3
S. Rep. No. 417, 97th Cong., 2d Sess. (1982) ..............  20, 21, 45



M  tjjt Supreme Court of tf)t :§>tatr£
October Term , 1995

No. 94-805
George W. Bush, Governor of Texas,

ET AL., APPELLANTS

V.

Al Vera , et al.

No. 94-806
Rev . William Lawson, et al ., appellants

v.
Al Vera , et al.

No. 94-988
U nited States of America, appellant

v.

Al Vera , et al.

ON APPEAL FROM THE UNITED STATES DISTRICT  
COURT FOR THE SOUTHERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES

OPINION BELOW
The opinion of the three-judge district court (J.S. App. 

la-104a) is reported at 861 F. Supp. 1304.

(1)



2

JURISDICTION
An order of the three-judge district court was entered 

on September 2,1994. J.S. App. 105a-106a. That order was 
amended to afford injunctive relief on September 20, 1994. 
Id. at 107a-108a. A notice of appeal was filed on October 3, 
1994. Id. at 109a-110a. This Court noted probable ju ris ­
diction on June 29, 1995. 115 S. Ct. 2639 (1995). The ju ris ­
diction of this Court rests on 28 U.S.C. 1253.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Equal Protection Clause of the Fourteenth Amend­
ment provides that “[n]o State shall * * * deny to any 
person within its jurisdiction the equal protection of the 
laws.” The relevant statutory provisions are Sections 2 
and 5 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973, 1973c, which are reproduced in the Appendix 
to the Jurisdictional Statement. J.S. App. llla-113a.

STATEMENT
This case involves a challenge to the State of Texas’s 

1991 congressional redistricting plan. A three-judge dis­
trict court invalidated three districts in the plan that were 
drawn to afford black and Hispanic voters an opportunity 
to elect candidates of their choice. The court found that 
those three districts—one in Dallas County and two 
in Harris County—placed voters into different d istric ts 
on the basis of race without sufficient justification in 
violation of the Equal Protection Clause of the Four­
teenth Amendment. The United States, a defendant- 
intervenor below, has appealed from that judgment. The 
State of Texas and private intervening defendants have 
also appealed.

1. a. The State of Texas has a long history of discrimi­
nation against racial minorities in voting and in the law



3

governing elections. See J.A. 359-367; St. Exh. 17; see also 
White v. Regester, 412 U.S. 755 (1973) (racially dilutive 
multimember districts); Texas v. United States, 384 U.S. 
155 (1966) (per curiam) (poll tax); Terry v. Adams, 345 U.S. 
461 (1953) (white primary); Sm ith  v. Allwright, 321 U.S. 
649 (1944) (same); N ixon  v. Condon, 286 U.S. 73 (1932) 
(same); N ixon  v. Herndon, 273 U.S. 536 (1927) (same). 
That well-documented history of discrimination prompted 
Congress to extend Section 5 of the Voting Rights Act to 
Texas in 1975. See S. Rep. No. 295, 94th Cong., 1st Sess. 
25-30 (1975). No district in Texas with a majority of white 
residents has ever elected a black member to Congress. 
St. Exh. 17, at 55. Nor has any black state senator ever 
been elected from a majority-white district. Id. at 51-52. 
Only two black state house members have been elected 
from districts with white population majorities. Id. at 51. 
Similar data exists regarding the failure of Hispanic 
candidates to win elections in districts with white 
majorities. J.A. 252; U.S. Exh. 1095 (letter dated Nov. 12, 
1995, at 2).

b. Between 1980 and 1990, the population of Texas grew 
from approximately 14.2 million to almost 17 million. J.S. 
App. 9a. As a result, Texas was allocated three additional 
congressional seats in 1991, giving it a total of 30 seats. 
Ibid. The growth of the Hispanic and black populations in 
Texas during the 1980s was particularly substantial. Id. 
at 9a-10a. During that decade, the Hispanic population 
increased by more than 45%, and the black population 
increased by nearly 17%, while the Anglo population 
increased by 10%. Id. at 10a. By 1990, Hispanics consti­
tuted 22.5% of the total population, blacks constituted 
11.6% of the population, and the percentage of Anglos had 
declined to-60.5% of the State’s total population. Id. at 9a.

Much of Texas’s population growth during the 1980s 
occurred in Harris County (in which Houston is located),



4

Dallas County (in which Dallas is located), and Bexar 
County (in which San Antonio is located). J.S. App. 10a. 
Increased Hispanic and black population accounted for 
most of the growth in those counties. Id. at 10a-12a. In 
recognition of the growth of population in Harris, Dallas 
and Bexar Counties, the Texas legislature placed Texas’s 
three new congressional districts in those counties and 
drew the new districts in a way that would afford His- 
panics and blacks in those areas the opportunity to elect 
candidates of their choice despite the State’s history 
of racial discrimination in voting. Id. at 19a. Considered 
statewide, the plan enacted by the State in 1991 gave 
Hispanics an opportunity to elect candidates of their 
choice in seven of the State’s 30 districts and blacks an 
opportunity to elect candidates of their choice in two 
districts. See PL Exh. 36, at 27.

c. In addition to affording the black and Hispanic 
minorities opportunities to overcome Texas’s history 
of racial discrimination in voting, the State’s 1991 plan 
also reflected the legislature’s commitment to two other 
principles—that congressional districts would all contain 
the same number of residents and that district lines 
would be drawn to protect the reelection prospects of 
all incumbent representatives. J.A. 246-249; 1 Tr. 85; 3 
Tr. 163, 215; U.S. Exh. 1071 Supp. at 12. The State has 
traditionally viewed incumbency protection as a very 
important consideration in redistricting. J.S. App. 12a- 
13a. Following the 1960 Census, for example, the State 
gained a congressional seat, but redistricted by creating 
an at-large seat in order to allow all incumbents’ d istricts 
to remain intact. Id. at 12a. Later in the 1960s, Texas 
created a district that traversed a large portion of the 
State in order to protect an incumbent. Id. at 12a-13a. 
During redistricting in the 1970s, a delegation of state 
legislators working on redistricting flew to Washington,



5

D.C., to meet with members of the Texas congressional 
delegation on a group and individual basis. Id. at 13a. A 
participant in the redistricting process in the 1980s and 
1990s testified that, “[f]or the most part, the only 
traditional districting principles that have ever operated 
here are that incumbents are protected and each party 
grabs as much as it can.” Id. at 13a n.9.

In the 1991 redistricting, the state legislature agreed to 
protect the seat of every sitting representative. J.S. App. 
26a. Each Member of Congress and each state legislator 
with an interest in a particular district had an opportunity 
to help draw the lines of the district during the mapping 
process. Id. at 25a-26a. Representatives and legislators 
drew on several sources to assist them in that process. 
The legislature’s computers could provide past election 
results on the redistricting maps on a precinct-by­
precinct level; racial information about population was 
available at the census block level. Id. at 27a. Repre­
sentatives also knew the partisan makeup of various areas 
from their own election experience and from driving 
through those areas. 3 Tr. 177-179. In addition. Demo­
cratic representatives and legislators had access to a 
database that provided political information on a 
household-by-household basis; they could therefore obtain 
the number of Democratic primary voters residing in any 
proposed district. Id. at 179. Incumbent congressional 
representatives and state legislators contemplating a run 
for Congress would often go to a legislative mapping room 
to evaluate proposed districts and to suggest changes that 
would improve their chances of winning. Id. at 168.

2. This appeal involves districts drawn in Dallas and 
Harris Counties. In deciding how to draw the districts in 
those two counties, the legislature took into account its 
obligations under the Voting Rights Act. J.S. App. 18a- 
22a. Believing that the Voting Rights Act required it to



6

do so, the legislature created a new black opportunity 
district in Dallas County and a new Hispanic opportunity 
district in Harris County. Id. at IS a^ la .1 In addition, the 
legislature reconfigured a district in Harris County in 
which blacks had been able to elect a candidate of their 
choice over the past two decades so that they would con­
tinue to have that opportunity. Id. at 19a-21a.

The population of Dallas County is sufficient to support 
three and one-third districts. U.S. Exh. 1085. Blacks 
make up approximately 20% of the population in the 
County. U.S. Exh. 1084. In the State’s plan, Dallas 
County is divided among seven districts. Four of those 
districts draw most of their population from Dallas 
County. PL Exh. 34P. The State’s plan affords blacks in 
Dallas County an opportunity to elect a candidate of their 
choice in one of those four districts. PI. Exh. 4C.

The Harris County population is sufficient to support 
five congressional districts. U.S. Exh. 1085. Hispanics 
make up approximately 23% of the population of the 
County, and blacks make up approximately 19% of the 
population. U.S. Exh. 1084. In the State’s plan, H arris 
County is divided among seven congressional districts. 
Three of those districts draw all of their population from 
Harris County and one draws most of its population from 
it. PI. Exh. 34P. The State’s plan contains one district 
in Harris County that provides blacks with an opportunity 
to elect a candidate of their choice and one district that 
provides Hispanics with such an opportunity. J.A. 185,229.

1 An opportunity district is a district in which the relevant mi­
nority group has a meaningful opportunity to elect the representative 
of its choice despite racial discrimination in voting either because it 
constitutes a voting majority in the district or because it constitutes a 
sizable minority that can elect its preferred candidate because some 
non-minorities will vote for the minority-preferred candidate.



7

a. District 30 is the black opportunity district in 
Dallas County. That district has a core area that contains 
half of the district’s population and that is 69% black. J.S. 
App. 29a; J.A. 335. The district contains seven additional 
areas, each of which is highly irregular in shape. Ibid. 
The population of each of those areas is between 20% and 
38% black. Ibid. Overall, District 30 is 50% black in total 
population, 47.1% black in voting-age population (VAP), 
and 50.3% black in citizen voting-age population (CVAP). 
St. Exh. 14; J.S. App. 30a. The black community in Dallas 
County believed a 50% black population district to be nec­
essary to ensure that it would have an opportunity to elect 
a candidate of its choice. Id. at 22a.

The legislature decided to draw a black opportunity dis­
trict in Dallas County in order to comply with the Voting 
Rights Act. J.S. App. 18a-20a, 89a-90a. The legislature 
knew that it was possible to create a reasonably compact 
black opportunity district in Dallas County. At least two 
such plans were presented to it, J.A. 139 (Johnson plan); 
PI. Exh. 33 (Owens-Pate plan); see J.S. App. 59a-60a, 78a, 
88a. The legislature was also aware that blacks in Dallas 
County are politically cohesive and that whites in the 
County usually vote as a bloc against black-preferred 
candidates. Shortly before the 1991 redistricting process 
began, a federal district court had found that voting in 
Dallas was racially polarized. W illiams v. City of Dallas, 
734 F. Supp. 1317 (N.D. Tex. 1990). Legislators involved in 
the redistricting process were aware of that finding. See 
Lawson Exhs. 7, 11.

Although it was possible to draw a reasonably compact 
black opportunity district in Dallas County, political 
considerations prevented that result. In practice, the 
lines of District 30 were the product of compromise among 
three incumbent elected officials: Eddie Bernice Johnson, 
Martin Frost, and John Bryant. J.S. App. 35a-38a. John-



son, who is black, is now the congressional representative 
from District 30. Id. at 30a. In 1991, Johnson was a 
Democratic state senator from Dallas County and the 
chair of the State senate’s committee on congressional 
redistricting. Id. at 30a-33a. Frost and Bryant were in­
cumbent white Members of Congress from Dallas. Id. at 
33a. Prior to the 1991 redistricting, F rost’s and B ryant’s 
districts had divided heavily Democratic south Dallas 
County between them. PL Exh. 28C; 3 Tr. 187.

Early in the redistricting process, Johnson suggested a 
plan that included a reasonably compact district in Dallas 
with a 44% black total population. J.A. 139. That d istrict 
would have afforded black voters an opportunity to elect 
the candidate of their choice. J.A. 234 & n.21; 5 Tr. 21. 
Johnson’s proposed district was rejected, however, because 
it included substantial portions of F rost’s and Bryant’s 
existing districts, as well as Frost’s and Bryant’s own 
residences, in the new District 30. J.S. App. 35a & n.22, 
59a. Another plan submitted to the redistricting com­
mittee, the “Owens-Pate plan,” also drew a reasonably 
compact black opportunity district in Dallas. PL Exh. 33; 
J.S. App. 59a, 88a. That plan required eight incumbents to 
run against each other in four districts, however, and did 
not have the votes to pass. 4 Tr. 84, 179.

The ultimate shape of District 30 was dictated by a 
compromise designed to create a black opportunity d istrict 
in which Johnson could run for Congress while still per­
mitting Bryant and Frost to maintain a favorable partisan 
political mix in their districts. 1 Tr. 56-81, 3 Tr. 185-207. 
Bryant and Frost both objected to losing black and white 
Democratic voters in the southern area of proposed Dis­
trict 30. J.S. App. 36a. Frost especially objected to losing 
Democrats from the racially mixed Grand Prairie area 
who had supported him in past elections. Id. at 36a & 
n.23; 3 Tr. 188-189. Frost and Bryant had an interest in



9

retaining black voters because those voters had voted 
overwhelmingly Democratic in the past. J.S. App. 37a-38a. 
In order to satisfy those concerns of Frost and Bryant, 
several concentrations of black voters were removed from 
District 30 as it was originally proposed by Johnson and 
retained in F rost’s and Bryant’s Districts. 1 Tr. 80. 
District 30 was thus required to extend into north Dallas 
County in order to contain sufficient total population and 
sufficient black population to enable it to be a black op­
portunity district. J.A. 149; 3 Tr. 187-189. That led the 
State to create the irregular extensions that characterize 
the borders of District 30.

b. District 18 is the black opportunity district in 
Harris County; District 29 is the Hispanic opportunity 
district. The lines separating Districts 18 and 29 are 
highly irregular and closely track Hispanic and black 
population concentrations. J.S. App. 40a-41a. District 18 
is 51% black in total population, 48.6% black in VAP, and 
52.1% black in CVAP. St. Exh. 14; J.S. App. 40a. D istrict 
29 is 60.6% Hispanic in total population, 55.4% Hispanic in 
VAP, and 42.5% Hispanic in CVAP. Ibid.

The state legislature decided to draw one Hispanic 
opportunity district and one black opportunity district in 
Harris County in order to comply with the Voting Rights 
Act. J.S. App. 18a-19a, 89a-90a. In prior redistrictings, 
blacks and Hispanics had been combined to form a majority 
of the population in District 18. St. Exh. 17, at 44, 55-56. 
As of the 1980 redistricting, the district’s population was 
40.8% black and 31.2% Hispanic. See Seamon v. Upham, 
536 F. Supp. 931, 984 (E.D. Tex.) (three-judge court), 
vacated and remanded on other grounds, 456 U.S. 37 (1982) 
(per curiam). Throughout the 1980s, blacks and Hispan­
ics had voted together to elect black representatives to 
Congress. St. Exh. 17, at 55-56.



10

By 1990, however, the coalition between blacks and 
Hispanics had begun to disintegrate. J.S. App. 22a-23a. 
The state legislature was aware in 1991 that black and 
Hispanic voters no longer voted together consistently, as 
several recent elections in Houston had demonstrated 
(Lawson Exh. 26; PI. Exhs. 4C, 15H). At the outset of 
the 1991 redistricting, Hispanics in Harris County made 
clear that they opposed the creation of districts in which 
blacks and Hispanics were combined to form a majority. 
J.S. App. 23a. Hispanic leaders believed that the signif­
icant increase in Hispanic population during the 1980s 
justified the creation of a new Hispanic opportunity dis­
trict in Harris County; they favored a plan that would 
create such a district while retaining a black opportunity 
district. Id. at 42a-43a. A consensus emerged in the leg­
islature to support that proposal. Id. at 42a.

The minority populations in Harris County are suffi­
ciently concentrated to permit the drawing of either 
one reasonably compact black opportunity district or 
one reasonably compact Hispanic opportunity district. 
J.A. 197-198 (black); J.A. 199-200 (Hispanic). It is unclear 
whether it was possible to draw both a reasonably 
compact black opportunity district and a reasonably 
compact Hispanic opportunity district simultaneously. 
The Owens-Pate plan set out to accomplish that result. 
Questions were raised, however, about the compactness of 
the black opportunity district that Owens-Pate provided. 
2 Tr. 132. And the Hispanic opportunity district provided 
by that plan afforded significantly smaller opportunity for 
Hispanics to elect the representative of their choice than 
did the plan ultimately enacted by the state legislature. 
4 Tr. 205. Nonetheless, the Owens-Pate plan would have 
provided blacks an opportunity to elect a representative 
of their choice in one district; it would have provided 
Hispanics with at least some opportunity to elect a



11

representative of their choice in another district; and the 
districts in that plan were much more compact than 
the districts ultimately enacted by the legislature. See 
PL Exh. 32a; J.S. App. 88a. As noted above, however, the 
Owens-Pate plan, which required incumbents to run 
against each other, was rejected.

As was the case with District 30 in Dallas County, 
political considerations significantly affected the ultimate 
shape of Districts 18 and 29. A logical way to reconfigure 
District 18 would have been to model it upon the majority - 
black state senate district in Harris County. J.S. App. 44a 
& n.29. A proposal to do that, however, was blocked by 
Mike Andrews, an incumbent Member of Congress from a 
majority-white district in Harris County, who would have 
lost a large part of his congressional district under that 
proposal. Id. at 44a. In addition, Craig Washington, then 
the incumbent Member of Congress for District 18, in­
sisted that new District 18 move out of the Sunnyvale 
area of southern Harris County and into northern H arris 
County in order to avoid including an opposition candidate 
in his district. 4 Tr. 45-46.

Negotiations between Roman Martinez and Gene Green, 
state legislators who aspired to run for Congress in the 
new District 29, also influenced the shape of the two 
districts. J.S. App. 42a & n.27. Green wanted the new 
district to include a group of non-Hispanic voters who 
had voted for him as a state senator. Id. at 44a-45a. That 
required the drawing of highly irregular lines in order 
to capture sufficient additional Hispanic voters to retain 
the Hispanic population in the district that the legislature 
believed was necessary for Hispanics to have an oppor­
tunity to elect a candidate of their choice. Id. at 45a.

3. The Attorney General of the United States pre­
cleared the State’s 1991 redistricting plan under Section 5 
of the Voting Rights Act. J.A. 343-344. The State’s plan



12

was then challenged by plaintiffs who alleged that it 
violated Section 2 of the Voting Rights Act and a 
constitutional prohibition against partisan gerrym ander­
ing. J.S. App. 16a-17a. In Terrazas v. Slagle, 789 F. Supp. 
828 (W.D. Tex. 1991) (three-judge court), aff’d, 112 S. Ct. 
3019, 113 S. Ct. 29 (1992); 821 F. Supp. 1162 (W.D. Tex. 
1993) (three-judge court), a federal district court rejected 
those claims.

Appellees then filed the present suit. Appellees are six 
Texas voters, five of whom live in the districts at issue on 
this appeal. J.S. App. 6a. They alleged that 24 of the 
State’s 30 congressional districts, including the three 
districts at issue here, were the product of racial g e rry ­
mandering and lacked sufficient justification. Id. at 4a, 6a- 
7a. The district court permitted the United States, six 
African-American voters, the League of United Latin 
American Citizens, and seven Hispanic voters to intervene 
as defendants. Id. at 7a. After a trial, the district court 
concluded that Districts 18, 29, and 30 were unconsti­
tutional. Id. at 4a-5a. The court upheld the 21 other 
districts challenged by appellees. Id. at 5a.

The district court held that redistricting is suspect 
under Shaw  when it results in “bizarrely shaped d istric ts 
whose boundaries were created for the purpose of racially 
segregating voters.” J.S. App. 65a. Applying that test, the 
court held that the districts at issue here called for s tric t 
scrutiny. The court specifically found that the boundaries 
of District 30 in Dallas County were convoluted and were 
deliberately made that way to include a population that 
was 50% black. Id. at 77a-81a. The court also found that 
the lines dividing Districts 18 and 29 in Harris County 
appear “utterly  irrational—unless one factors in the 
overlap between these district boundaries and the racial 
makeup of their underlying populations.” Id. at 83a-84a. 
The court concluded that “[t]he goal of separating His­



13

panic and African-American residents from each other and 
from the white population for the purposes of voting led to 
the creation of [Districts 18 and 29].” Id. at 84a.

Applying strict scrutiny, the court found that none of 
the three districts was narrowly tailored to achieve a 
compelling state interest. The court stated that “[i]t is 
not obvious to this court that the State justifiably  feared 
potential liability under § 2 or § 5 of the Voting Rights Act 
if it failed to protect District 18 and set aside [D istricts 
29 and 30] for minority Congressmen.” J.S. App. 89a-90a 
(footnote omitted). In that regard, the court found that 
Districts 18, 29, and 30 do not satisfy the Section 2 
compactness requirement set forth in Thornburg v. 
Gingles, 478 U.S. 30 (1986). J.S. App. 89a n.54. Neverthe­
less, the court found that, “[to comply with the Voting 
Rights Act] and other reasons, the Legislature created 
the districts,” and, “[according to Shaw, this is permis­
sible if the districts are narrowly tailored to comply with 
Voting Rights Act concerns.” Id. at 90a.

On the issue of narrow tailoring, the court held that, 
“[b]eeause a Shaw  claim embraces the district’s appear­
ance as well as its racial construction, narrow tailoring 
must take ^oth these elements into account.” J.S. App. 
91a. For that reason, the court concluded that, “to be 
narrowly tailored, a district must have the least possible 
amount of irregularity in shape, making allowances for 
traditional districting criteria.” Ibid. Because the court 
found that the State could have constructed alternative 
minority opportunity districts that were much more 
geographically compact than Districts 18, 29, and 30, the 
court concluded that those districts were not narrowly 
tailored to further the State’s interest in complying with 
the Voting Rights Act. Id. at 92a-93a. The court rejected 
the contention that the State’s interest in protecting 
incumbents was relevant to the narrow tailoring inquiry,



14

reasoning that the argument “implicitly equatfed] incum­
bent protection with a compelling state interest.” Id. 
at 91a. The court noted that “Shaw  nowhere refers 
to incumbent protection as a traditional d istricting 
criterion.” Id. at 69a.

4. On September 2, 1994, the district court entered an 
order permitting the 1994 elections to be held under the 
existing redistricting plan, but directing the State to 
prepare a new plan by March 15, 1995. J.S. App. 105a-106a. 
On September 20, 1994, the court entered an order amend­
ing the September 2 order so that it enjoined the use of the 
redistricting plan for the 1996 elections. Id. at 107a-108a. 
On December 23, 1995, this Court stayed the district 
court’s orders pending disposition of the appeal.

SUMMARY OF ARGUMENT
The district court erred in holding that Districts 18, 29, 

and 30 do not satisfy strict scrutiny. Those districts are 
narrowly tailored to further Texas’s compelling in terests 
in complying with Section 2 of the Voting Rights Act and 
ameliorating the effects of racially polarized voting.

A. Texas had a compelling interest in drawing one 
black opportunity district in Dallas County and one black 
and one Hispanic opportunity district in Harris County in 
order to comply with Section 2 of the Voting Rights Act. 
Section 2 is a constitutional exercise of Congress’s power 
to enforce the Fourteenth and Fifteenth Amendments and 
furthers the compelling interest in eliminating the effects 
of racial discrimination in voting. State compliance with 
Section 2 furthers that same compelling in terest.

A State has a compelling interest in creating minority 
opportunity districts in order to comply with Section 2 
when it has a firm basis in evidence for believing that such 
districts are required by that provision. Such a firm basis 
exists when (1) members of the minority group are suffi­



15

ciently numerous and concentrated to have the oppor­
tunity to elect candidates of their choice in a reasonably 
compact district; (2) the minority group is politically 
cohesive; (3) whites have engaged in significant bloc voting 
against minority-preferred candidates; and (4) the failure 
to create a minority opportunity district would leave mi­
nority group members substantially underrepresented 
when compared to their percentage in the relevant popula­
tion. Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986); 
Johnson v. DeGrandy, 114 S. Ct. 2647, 2658 (1994). Texas 
had sufficient evidence to satisfy those requirements for 
the three districts challenged in this case.

The district court did not address that evidence. It held 
that, because the districts actually enacted in the State’s 
plan do not satisfy the Gingles compactness requirem ent, 
Section 2 could not provide any justification for creating 
them. To have a compelling interest in complying with 
Section 2, however, the State was not required to show 
that the districts it actually drew satisfied the Gingles 
compactness requirement. The question at the compelling 
interest stage of the inquiry is whether reasonably 
compact minority opportunity districts could have been 
drawn. When such districts could have been drawn and 
there is a strong basis in evidence for the State to believe 
that the other preconditions are established, the State has 
a compelling interest in drawing minority opportunity 
districts in order to comply with Section 2. The question 
whether the State has furthered that interest in a consti­
tutionally permissible manner is a question of narrow 
tailoring.

B. In addition to its interest in complying with the 
Voting Rights Act, the State also had a compelling in­
terest in ameliorating the consequences of racial bloc 
voting attributable to past and present discrimination. 
The State was faced with persistent patterns of racially



16

polarized voting. It could create minority opportunity dis­
tricts in order to ensure that racially polarized voting 
did not cause minority group members to be severely 
underrepresented.

C. D istricts 18, 29, and 30 were narrowly tailored to 
further the State’s two compelling interests. A S tate’s 
plan is narrowly tailored if it uses racial considerations no 
more than is reasonably necessary in order to achieve its 
compelling interests. A State violates that standard if, in 
creating minority opportunity districts, it (1) creates 
more such districts than necesary to comply with the 
Voting Rights Act or to eliminate the effects of racially 
polarized voting; (2) packs substantially more minority 
voters than necessary into those districts; or (3) departs 
from its traditional districting criteria more than is nec­
essary in order to satisfy its compelling or other legit­
imate redistricting interests. The districts at issue here 
did not violate any of those restrictions.

The district court held that the challenged districts are 
not narrowly tailored because the State could have drawn 
minority opportunity districts that were more compact. If 
the State had drawn those other districts, however, it 
would have had to sacrifice its strong traditional in terest 
in protecting incumbents. In order to protect incumbents 
while achieving its compelling interest in creating mi­
nority opportunity districts, the State was required to 
draw irregularly shaped districts.

The district court’s conclusion that Shaw  requires a 
State to draw compact districts even if that means that the 
State cannot protect incumbents is incorrect and based 
on a misreading of Shaw. The district court’s conclusion 
conflicts with this Court’s repeated holdings that federal 
courts must not substitute their own redistricting pref­
erences for those of the States. It also seriously under­



17

mines Congress’s goal of encouraging voluntary compli­
ance with Section 2.

Because the district court applied incorrect legal 
standards, its judgment should be reversed or, alterna- 
tively, the decision should be vacated and the case 
remanded for a decision under the correct legal standards.

ARGUMENT

In troduction
In their briefs, the State of Texas and the

Lawson/LULAC intervenors argue that the lower court 
erred in its decision to apply strict scrutiny to the 
congressional districts at issue on this appeal. In M iller v. 
Johnson, 115 S. Ct. 2475 (1995), this Court held that s tric t 
scrutiny is required if “race was the predominant factor 
motivating the legislature’s decision to place a significant 
number of voters within or without a particular district. 
To make this showing, a plaintiff must prove that the 
legislature subordinated traditional race-neutral dis­
tricting principles * * * to racial considerations.” Id. at 
2488. Plaintiffs will satisfy this “demanding” threshold 
standard only where they can “show that the State has 
relied on race in substantial disregard of customary and 
traditional districting practices.” Id. at 2497 (O’Connor, J., 
concurring).

The decision below that strict scrutiny was applicable 
here was made before the M iller decision and the district 
court did not have the benefit of the M iller opinion in 
making that judgment. The record in this case shows that 
protection of incumbents is a customary and traditional 
Texas redistricting practice, and the district court found 
that incumbency protection played an important role in the 
final shape of the challenged districts. The district court 
nevertheless refused to consider as legally significant



18

whether and to what extent incumbency protection ex­
plained the challenged districts (J.S. App. 66a-72a). That 
refusal was inconsistent with M iller.

This Court, however, need not reach the question 
whether strict scrutiny was applicable here, because the 
district court’s ruling must be reversed in any event. As 
we show below, the district court made significant legal 
errors in applying strict scrutiny to the facts of this case. 
Had the district court applied strict scrutiny correctly, it 
would have concluded that the challenged districts are 
constitutional regardless of whether strict scrutiny was 
applicable. The Court can dispose of the case on that basis. 
See United States v. Paradise, 480 U.S. 149, 166-167 (1987) 
(plurality opinion) (declining to decide whether court- 
ordered race-conscious relief was subject to strict scrutiny 
since the relief ordered satisfied such scrutiny).

THE STATE’S REDISTRICTING PLAN SATISFIES
STRICT SCRUTINY

This Court recently went out of its way “to dispel the 
notion that strict scrutiny is ‘strict in theory, but fatal in 
fact.’” Adarand Constructors, Inc. v. Pena, 115 S. Ct. 
2097, 2117 (1995). In doing so, the Court recognized that 
“[t]he unhappy persistence of both the practice and the 
lingering effects of racial discrimination against minority 
groups in this country is an unfortunate reality, and 
government is not disqualified from acting in response to 
it.” Ibid. Accordingly, “[w]hen race-based action is neces­
sary to further a compelling interest, such action is 
within constitutional restrain ts if it satisfies the ‘narrow 
tailoring’ test this Court has set out in previous cases.” 
Ibid. The minority opportunity districts at issue in th is 
case are narrowly tailored to further Texas’s compelling 
interests in complying with Section 2 of the Voting



19

Rights Act and in ameliorating the effects of persistent 
racially polarized voting.

A. The State Had A Compelling Interest In Drawing One 
Black Opportunity District In Dallas County And One 
Black And One Hispanic Opportunity District In 
Harris County In Order To Comply With Section 2 
Of The Voting Rights Act

1. The State drew Districts 18, 29, and 30 in order to 
comply with Section 2 of the Voting Rights Act. In M iller 
v. Johnson, 115 S. Ct. 2475, 2490-2491 (1995), the Court left 
open the question whether compliance with the Voting 
Rights Act, standing alone, provides a compelling justifi­
cation for governmental action. The background to the 
enactment of Section 2 and this Court’s prior cases an­
swer that question and demonstrate that a State has a 
compelling interest in complying with Section 2.

Congress adopted the Voting Rights Act in 1965 “to 
banish the blight of racial discrimination in voting, which 
ha[d] infected the electoral process in parts of our country 
for nearly a century.” South Carolina v. Katzenbach, 383 
U.S. 301, 308 (1966). After a thorough investigation, 
Congress determined that earlier attempts to remedy 
racial discrimination in voting had failed because of “unre­
mitting and ingenious defiance of the Constitution” in 
some parts of the country. Id. at 309. Congress therefore 
adopted “sterner and more elaborate measures,” ibid . , 
including Section 5’s requirement that covered ju ris­
dictions preclear their voting changes with federal 
officials and Section 2’s requirement that all jurisdictions 
avoid abridgements of the right to vote on the basis of race. 
Id. at 315-316.

When it subsequently extended the Voting Rights Act 
in 1982, Congress concluded that its provisions continued 
to be necessary in order to prevent voting discrimination.



20

See S. Rep. No. 417, 97th Cong., 2d Sess. 9-10 (1982). At 
that time, Congress heard evidence that minority group 
members continued to experience direct impediments to 
voting, including physical intimidation of voters and candi­
dates, reregistration requirements, voter purges, changes 
in the location of polling places, and inconvenient voting 
and registration hours. Id. at 10 n.22 (citing testimony 
from House and Senate hearings). Congress also heard 
evidence that, between 1970 and 1980, discrimination in 
voting had become much more sophisticated and involved 
purposeful efforts to dilute minority voting strength 
through such practices as annexations, the use of at-large 
elections, majority vote requirements, numbered places, 
and the shifting of district boundary lines. Id. at 10. 
Finally, Congress was presented with “overwhelming 
evidence” that racial politics continued to dominate the 
political process in some communities. Id. at 33-34.

In response to those continuing threats to minority 
voting rights, Congress extended Section 5 of the Act 
and amended Section 2 to prohibit voting practices that 
have discriminatory “results.” 42 U.S.C. 1973(a). Con­
gress provided that discriminatory results occur when 
minority group members have “less opportunity than 
other members of the electorate to participate in the 
political process and to elect representatives of their 
choice.” 42 U.S.C. 1973(b). Congress recognized that com­
pliance with that new statutory prohibition would 
sometimes require taking race into account in drawing 
district lines. S. Rep. No. 417, supra, at 30-34. Congress 
believed, however, that such a prohibition was necessary; 
it concluded that prohibiting practices with discrim­
inatory results was essential to prevent intentional 
discrimination that would otherwise “go undetected, 
uncorrected and undeterred” because of the inordinate 
difficulty of proving a discriminatory purpose. Id. at 36,



21

40. Congress also concluded that “voting practices and 
procedures that have discriminatory results perpetuate 
the effects of past purposeful discrimination.” Id. at 40. 
Congress’s conclusions were supported by abundant 
evidence. As one court has stated, “[ejmpirical findings fcy 
Congress of persistent abuses of the electoral process, and 
the apparent failure of the intent test to rectify those 
abuses, were meticulously documented and borne out by 
ample testimony.” Major v. Treen, 574 F. Supp. 325, 347 
(E.D. La. 1983) (three-judge court). Congress therefore 
enacted the amendment to Section 2 to further its 
compelling interest in eliminating racial discrimination 
and its effects. See Adarand , 115 S. Ct. at 2117; City of 
Richmond  v. J.A. Croson Co., 488 U.S. 469, 503-504, 509 
(1989); United States v. Paradise, 480 U.S. 149, 167 (1987) 
(opinion of Brennan, J.); id. at 186 (Powell, J., concurring); 
Local 28 of Sheet Metal Workers’ In t’l A ss’n  v. EEOC, 478 
U.S. 421, 480 (1986) (opinion of Brennan, J.); id. at 485 
(Powell, J., concurring); Bob Jones Univ. v. United States, 
461 U.S. 574, 604 (1983).

This Court’s decisions firmly establish that Congress 
had authority under the Constitution to enact the 1982 
amendment to Section 2. This Court has made clear that, 
even though the Fourteenth and Fifteenth Amendments 
themselves prohibit only intentional discrimination, Con­
gress has broad authority under Section 5 of the 
Fourteenth Amendment and Section 2 of the Fifteenth 
Amendment to ban voting practices that have discrimina­
tory effects. City of Rome v. United States, 446 U.S. 156, 
173-178 (1980) (upholding Section 5 prohibition against 
retrogressive voting changes); Oregon v. Mitchell, 400 
U.S. 112 (1970) (upholding nationwide ban on literacy 
tests); Katzenbach v. Morgan, 384 U.S. 641 (1966) (up­
holding ban on use of literacy tests as applied to citizens 
educated in Puerto Rico); South Carolina v. Katzenbach,



22

383 U.S. at 334 (upholding the suspension of literacy tests  
in certain jurisdictions). In particular, Congress may 
proscribe voting practices with discriminatory effects 
when they either pose a “risk of purposeful discrim­
ination” or “perpetuate!] the effects of past discrim­
ination.” City of Rome, 446 U.S. at 176, 177; South  
Carolina v. Katzenbach, 383 U.S. at 334. Congress con­
cluded that both of those dangers were present here. The 
amendment to Section 2 therefore falls within Congress’s 
broad powers to enforce the Fourteenth and Fifteenth 
Amendments. Jones v. City of Lubbock, 727 F.2d 364, 372- 
375 (5th Cir. 1984) (upholding the constitutionality of 
Section 2); United States v. Marengo County Comm’n, 
731 F.2d 1546, 1556-1563 (11th Cir. 1984) (same).

The principles underlying the Court’s decisions in 
Shaw  v. Reno, 113 S. Ct. 2816 (1993), and M iller v. 
Johnson, supra, do not cast doubt upon the constitu­
tionality of Section 2. The Court explained in Shaw  and 
M iller  that government action that “separated] its citi­
zens into different voting districts on the basis of race” 
is suspect because it may be based on “the offensive and 
demeaning assumption that voters of a particular race, 
because of their race, ‘think alike, share the same political 
interests, and will prefer the same candidates at the 
polls.’” M iller, 115 S. Ct. at 2486 (quoting Shaw, 113 S. 
Ct. at 2827). Section 2 makes no such assumptions. 
Gingles, 478 U.S. at 46. It requires race-based districting 
only when there is empirical evidence that minority voters 
in the particular area are in  fact politically cohesive and 
that the majority in  fact usually votes as a bloc to defeat 
the minority’s preferred candidates. Crowe v. Emison, 
113 S. Ct. 1075, 1085 (1993). Section 2 therefore does not 
require a State to act on the basis of the stereotypes that 
Shaw  and Miller condemn.



23

Because Section 2 is a constitutional exercise of Con­
gress’s authority to eliminate racial discrimination and 
its effects, state compliance with its requirements fur­
thers that same compelling interest. Thus, when Section 
2 requires the drawing of minority opportunity districts, 
the State has a compelling interest in drawing such 
districts.

2. In order to show that it had a compelling interest in 
drawing minority opportunity districts so as to satisfy 
Section 2, a State is required to show that it had “a strong 
basis in evidence of the harm being remedied.” M iller, 115 
S. Ct. at 2491; Croson, 488 U.S. at 500. That standard is 
satisfied by evidence that provides a “reasonable basis to 
believe” that the failure to create the districts would 
violate Section 2. M iller, 115 S. Ct. at 2492.

The “strong basis in evidence” standard ensures that 
government actors engaging in race-conscious activity do 
so only for well-founded reasons. See Johnson v. Trans­
portation Agency, 480 U.S. 616, 652-653 (1987) (O’Connor, 
J., concurring in the judgment); Wygant v. Jackson Bd. o f 
Educ., 476 U.S. 267, 290-291 (1986) (O’Connor, J., con­
curring in part and concurring in the judgment). At the 
same time, it promotes voluntary compliance with the law 
by giving States a margin of safety against the “competing 
hazards” of liability to minorities if they do not create 
minority opportunity districts and liability to others if 
they do. Id. at 291 (O’Connor, J., concurring in part and 
concurring in the judgment). The need to provide such a 
margin of safety is particularly strong in redistricting, 
for “the States must have discretion to exercise the po­
litical judgment necessary to balance competing in ter­
ests” in the districting process. M iller, 115 S. Ct. at 2488.

3. This Court has not yet decided what constitutes a 
strong basis in evidence for a State’s belief that Section 2 
requires it to draw minority opportunity districts. This



24

Court’s Section 2 cases, however, furnish substantial 
guidance on that issue. In Gingles, the Court held that 
plaintiffs challenging multimember districts under Sec­
tion 2 must establish three preconditions: that the mi­
nority group “is sufficiently large and geographically 
compact to constitute a majority in a single-member 
district”; that the minority group “is politically cohesive”; 
and that “the white majority votes sufficiently as a bloc to 
enable it—in the absence of special circumstances * * * 
—usually to defeat the minority’s preferred candidate.” 
478 U.S. at 50-51. The Court has subsequently held that 
those same preconditions apply to challenges to single­
member district plans. See Growe, 113 S. Ct. at 1084. 
After establishing the three Gingles preconditions, plain­
tiffs must also prove vote dilution from the totality of 
circumstances. Johnson v. DeGrandy, 114 S. Ct. 2647, 
2657-2658 (1994).

In DeGrandy, the Court held that, in a single­
member district case, the compactness and numerosity 
precondition “requires the possibility of creating more 
than the existing number of reasonably compact d istric ts 
with a sufficiently large minority population to elect 
candidates of its choice.” 114 S. Ct. at 2655. The Court 
left open the question which characteristics of the 
minority population are relevant in deciding whether the 
minority group could constitute a majority (e.g., age, 
citizenship). Id. at 2655-2656. It also left open the related 
question whether the first precondition can be satisfied by 
proof that the minority group could constitute a sizable 
minority (rather than a majority) in a district and could 
elect candidates of its choice by attracting some cross­
over votes. Id. at 2656. Those questions had been reserved 
in prior cases as well. See Growe, 113 S. Ct. at 1083 n.4 
(noting that lower courts have looked to voting population 
rather than to total population to determine whether the



25

minority could constitute a' majority and that Gingles 
refers to voting population, but reserving the question); 
Voinovich v. Quilter, 113 S. Ct. 1149, 1154-1155 (1993) 
(reserving question whether minority that could not 
constitute a majority but could nevertheless elect can­
didates of its choice in an alternative district can state a 
Section 2 claim); Growe, 113 S. Ct. at 1084 n.5 (same); 
Gingles, 478 U.S. at 46 n.12 (same).

In DeGrandy, the Court also made clear that the 
presence or absence of “substantial proportionality” be­
tween the number of majority-minority districts and 
minority members’ share of the relevant population is a 
significant factor in assessing the totality of circum­
stances. 114 S. Ct. at 2658; id. at 2664 (O’Connor, J., con­
curring) (proportionality is always relevant to a vote 
dilution claim, but never dispositive). If a State’s plan 
affords substantial proportionality, it may be difficult for 
plaintiffs to establish that they have been denied an equal 
opportunity to participate and elect representatives of 
their choice. Id. at 2658-2659. On the other hand, evidence 
that a State’s plan leaves minority group members 
substantially underrepresented when compared to their 
percentage in the relevant population may provide strong 
evidence of vote dilution. Id. at 2664 (O’Connor, J., 
concurring).

In light of Gingles and DeGrandy, and the continuing 
uncertainty concerning a State’s precise Section 2 obli­
gations, a State has a strong basis in evidence for 
believing that Section 2 requires it to create minority 
opportunity districts when: (1) members of the minority 
group are sufficiently numerous and concentrated to have 
the “potential to elect” candidates of their choice in a 
reasonably compact district (even if they would not 
constitute an absolute voting majority), Gingles, 478 U.S. 
at 50 n.17; (2) the minority group is politically cohesive; (3)



26

whites engage in significant bloc voting; and (4) the failure 
to create a minority opportunity district would leave 
minority group members substantially underrepresented 
when compared to their percentage in the relevant 
population. There may be other circumstances in which 
the State could demonstrate a firm basis in evidence 
for creating minority opportunity districts, but proof of 
those four factors ordinarily will be sufficient. A State 
cannot be expected to make the same totality-of-the- 
circumstances inquiry at the time it redistricts that a 
court is able to make after an adversary trial. Nor should 
the State be prevented from resolving uncertain Section 2 
issues in favor of the reading that is more, rather than 
less, protective of minority voting rights.

4. Texas had a strong basis in evidence for believing 
that Section 2 required it to draw one black opportunity 
district in Dallas County and one black and one Hispanic 
opportunity district in Harris County.

a. In Dallas County, it was possible to draw a reason­
ably compact district with a sufficiently large black 
population to provide black voters an opportunity to elect 
the candidates of their choice. Then-state Senator Eddie 
Bernice Johnson presented to the legislature a plan con­
taining such a district centered in South Dallas with a 
44% black population. J.A. 139. The district court found 
that Johnson’s district was “truly compact and contigu­
ous” because it was located in a compact geographical 
area, kept identifiable neighborhoods intact, and did not 
split precincts. J.S. App. 78a. The evidence also showed 
that Johnson’s district would have afforded blacks an 
opportunity to elect a representative of their choice. 5 Tr. 
21; J.A. 234 & n.21. The Owens-Pate plan considered by 
the legislature also contained a reasonably compact black 
opportunity district. J.A. 141. The existence of those two 
alternative districts established that the State had a



27

strong basis for believing that the first Gingles pre­
condition would be satisfied if it failed to draw a black 
opportunity district in Dallas County.

Texas also had a strong basis for believing that the 
second and third Gingles preconditions—black cohesion 
and white bloc voting—were satisfied in Dallas County. 
The State acted against the backdrop of a long history of 
judicial findings that polarized voting has existed in 
Dallas County. See, e.g., White v. Regester, 412 U.S. 755, 
765-767 (1973); Lipscomb v. Wise, 399 F. Supp. 782, 785-786 
(N.D. Tex. 1975), rev’d, 551 F.2d 1043 (5th Cir. 1977), rev’d, 
437 U.S. 535 (1978). Indeed, just one year prior to the 1991 
redistricting, a federal district court invalidated the 
election scheme for the Dallas City Council under Section 
2, finding, on the basis of an exhaustive analysis, that 
black voters in Dallas were politically cohesive and that 
white bloc voting usually defeated the candidates preferred 
by blacks. W illiams v. City of Dallas, 734 F. Supp. 1317, 
1387-1394 (N.D. Tex. 1990). Expert testimony presented 
by the State in the present case confirmed the existence 
of racially polarized voting in Dallas County both in the 
areas covered by District 30 and in the areas not included 
in that district. 4 Tr. 187; see also J.A. 227. Legislators 
involved in redistricting were aware of the findings in 
W illiam s and of the persistence of racially polarized vot­
ing in Dallas County. Lawson Exhs. 7,11; J.A. 251.

Finally, if the State had not drawn a black opportunity 
district in Dallas County, blacks in that area would have 
been very substantially underrepresented when compared 
to their percentage of the Dallas County population. Even 
though blacks constitute 20% of the Dallas County 
population and the Dallas County population is sufficient 
to support three and one-third congressional districts, 
blacks in Dallas County would not have been able to elect a 
single representative of their choice. See pp. 6, 7-9, supra.



28

The State therefore had a strong basis in evidence for 
its belief that Section 2 required it to create a black 
opportunity district in Dallas County.2

b. The State also had a strong basis for believing that 
Section 2 required it to draw one black and one Hispanic 
opportunity district in Harris County. The State pre­
sented evidence that black voters in Harris County were 
sufficiently numerous and concentrated to allow the 
drawing of one reasonably compact black opportunity 
district. See J.A. 197-198. Likewise, the State’s evidence 
showed that it was possible to draw a reasonably compact 
Hispanic opportunity district in Harris County. See J.A. 
199-200. Because many concentrations of black voters in 
Harris County are in close proximity to concentrations of 
Hispanic voters, those two hypothetical districts overlap. 
Given those demographic patterns, it is unclear whether 
the State could have drawn both a reasonably compact 
black opportunity district and a reasonably compact H is­
panic opportunity district simultaneously.

Notwithstanding that uncertainty, Texas had a strong 
basis in evidence for concluding that both minority groups 
satisfied the first Gingles precondition. Section 2 protects

2 A federal district court held in 1984 that a plan that failed to 
draw a majority-black congressional district in Dallas did not violate 
Section 2. See S ea m o n  v. U pham , No. P-81-49-CA (E.D. Tex. Jan. 30, 
1984). The court relied on evidence that black voters had “significant 
influence” on elections in the majority-white districts in southern 
Dallas County. Slip op. 15-16. At the time of the 1980 redistricting, 
however, Dallas County supported less than three districts. U.S. Exh. 
1085. Moreover, S ea m o n  was decided before the district court had 
issued its decision in W illia m s  on the extent of racial polarization in 
Dallas County. The legislature was entitled to take into account the 
fact that the Dallas County population now supports three and one- 
third districts and to rely on the more recent W illia m s  findings in 
concluding that Section 2 now requires a black opportunity district.



29

all racial minority groups and provides States with no 
clear basis on which to choose which of two sim ilar­
ly situated minority groups to protect from dilution. If 
the State had drawn only a black opportunity district, it 
would have been vulnerable to a Section 2 suit brought by 
Hispanics; if it had drawn only an Hispanic opportunity 
district, it would have been vulnerable to a suit brought 
by blacks. In that situation, rather than arbitrarily pre­
ferring one group over the other, the State reasonably 
concluded that its Section 2 responsibilities required it to 
provide both black and Hispanic voters an opportunity to 
elect their preferred candidates—even if that required a 
departure from compactness.

The State had a strong basis to believe that the second 
and third Gingles preconditions were satisfied in H arris 
County as well. The State’s expert, Dr. Lichtman, con­
cluded that elections in what is now District 29 were the 
“most extremely polarized” of any he examined-—Hispanic 
voters voted for Hispanic candidates 89% of the time, and 
Hispanic candidates received only a 5% crossover from 
white voters. 4 Tr. 186-187. The area now covered by 
District 18 also exhibited a high degree of polarization 
between black and white voters. 4 Tr. 187-188; see also J.A. 
225-227. Legislators involved in redistricting were well 
aware of the history of racially polarized voting in H arris 
County. J.A. 251.

The legislators involved in redistricting were also 
aware that the black/Hispanic coalition in H arris 
County—which had previously enabled black and Hispan­
ic voters to elect the candidate of their choice in the 
18th District—had begun to disintegrate. As the district 
court noted (J.S. App. 22a-23a), the breakdown of the 
black/Hispanic coalition had exhibited itself in a series of 
divisive local elections beginning in 1989. J.A. 251; Lawson 
Exh. 26. Dr. Lichtman’s analysis confirmed that “His­



30

panic and black voters did not usually both provide 
majority support for minority candidates.” J.A. 228-229. 
Texas therefore had a strong basis for concluding that 
black voters would lack an opportunity to elect represen­
tatives of their choice in a district designed to afford 
Hispanics such an opportunity and that Hispanics would 
lack an opportunity to elect candidates of their choice in a 
district designed to afford blacks such an opportunity. In 
contrast to the situation during the previous decade, only 
by drawing two minority opportunity districts in H arris 
County could the State in 1991 afford each group an 
opportunity to elect a representative of its choice.

Finally, if the State had not drawn either an Hispanic or 
a black opportunity district in Harris County, blacks and 
Hispanics in Harris County would have been very 
substantially underrepresented when compared to their 
percentage in the Harris County population. Hispanics 
make up approximately 23% of the Harris County popula­
tion and blacks make up approximately 19% of the H arris 
County population, and the population of Harris County is 
sufficient to support five districts. Nevertheless, neither 
group would have had an opportunity to elect a repre­
sentative of its choice if no minority opportunity d istric ts 
were drawn. See pp. 6, 9-11, supra. The evidence therefore 
establishes each of the prerequisites necessary to support 
the conclusion that Texas had a compelling interest in 
drawing one black and one Hispanic opportunity district in 
Harris County.

5. The district court did not purport to decide whether 
Texas had a strong basis in evidence for its conclusion 
that Section 2 required it to draw one black opportunity 
district in Dallas County and one black and one Hispanic 
opportunity district in Harris County. J.S. App. 86a-93a. 
The district court held instead that, because the d istricts 
actually drawn by the State do not satisfy the Gingles



31

compactness requirement, Section 2 could provide no 
justification for drawing those districts. Id. at 89a n.54. 
That reasoning is seriously flawed. For a State to invoke 
its compelling interest in creating minority opportunity 
districts in order to comply with Section 2, there must be 
evidence that reasonably compact districts could have been 
drawn. A State is not required, however, to enact a plan 
that incorporates the geographically compact d istricts 
that led it to conclude that Section 2 required it to create 
minority opportunity districts in the first place. Shaw  v. 
H unt, 861 F. Supp. 408, 454 n.50 (E.D.N.C. 1994) (three- 
judge court), probable juris, noted, 115 S. Ct. 2639 (1995). 
The district court’s contrary view reflects a basic mis­
understanding of the Gingles compactness requirement.

Gingles held that Section 2 plaintiffs must show that a 
reasonably compact district can be drawn in order to 
establish a violation of that provision. 478 U.S. at 50. 
Absent such a showing, the Court held, plaintiffs cannot 
show that the discriminatory aspects of the existing 
election system have caused their inability to elect 
candidates of their choice. Id. at 50 n.17. Gingles did not 
hold, however, that States are required to remedy 
violations of Section 2 by drawing compact districts. Nor 
does the statute impose such a requirement. Section 2 
prohibits the denial of an equal opportunity to elect 
representatives of choice. See 42 U.S.C. 1973(b). So long 
as a State’s plan provides that opportunity, Section 2 obli­
gations are satisfied; for Section 2 purposes, it does not 
m atter whether the State satisfies its statutory obliga­
tions by utilizing compact or noncompact districts. See 
Upham  v. Seamon, 456 U.S. 37, 42 (1982) (per curiam) 
(federal court must defer to a State’s remedial plan so long 
as it satisfies the substantive requirem ents of federal 
law); cf. McGhee v. Granville County, 860 F.2d 110, 120- 
121 & n .ll (4th Cir. 1988) (county may remedy violation of



32

Section 2 caused by multimember districts by increasing 
the size of the body or through limited voting scheme).

Thus, at the compelling interest stage of the inquiry, 
the relevant question under Gingles is whether reason­
ably compact minority opportunity districts could have 
been drawn. When such districts could have been drawn 
and the other preconditions for a strong basis in evidence 
are also established, the State has a compelling interest in 
drawing minority opportunity districts in order to comply 
with Section 2. The question whether the districts the 
State then draws to further that interest are drawn in a 
permissible way is a question of narrow tailoring. 
Because reasonably compact minority opportunity dis­
tricts could have been drawn in Dallas and H arris 
Counties and the other relevant preconditions for a strong 
basis in evidence were established, Texas had a compelling 
interest in drawing minority opportunity districts in 
order to comply with Section 2.

B. The State Also Had A Compelling Interest In 
Drawing One Black Opportunity District In Dallas 
County And One Black And One Hispanic 
Opportunity District In Harris County In Order To 
Counteract The Effects Of Racially Polarized Voting

The State’s decision to draw three districts in Dallas 
and Harris Counties in which minority voters would have 
an opportunity to elect the candidates of their choice was 
supported by an additional compelling interest: the
interest in ameliorating the effects of racially polar­
ized voting attributable to past and present racial 
discrimination. This Court has recognized that, even 
absent a federal statutory duty, a State has a compelling 
interest in taking race-conscious action to remedy 
identified discrimination within its jurisdiction if it has a 
strong basis for believing that its action is necessary to



achieve that remedial purpose. See Adarand, 115 S. Ct. at 
2117; Croson, 488 U.S. at 491-493, 509 (opinion of O’Connor, 
J.). Thus, a State has a compelling interest in eliminating 
the effects of racially polarized voting attributable to past 
and present discrimination, even when the Voting Rights 
Act does not require such action.

Texas has a long history of racial discrimination in 
voting and districting. After the close of Reconstruction, 
the state legislature drew district lines in predominantly 
black counties in a manner designed to minimize the 
effects of black votes in legislative and judicial elections. 
St. Exh. 17, at 4. At the turn of the Twentieth Century, 
Texas instituted a poll tax, which remained in place until 
it was struck down by a federal court in 1966. Texas v. 
United States, 384 U.S. 155 (1966) (per curiam); see St. 
Exh. 17, at 13. Texas replaced the poll tax with a system 
requiring annual voter registration; the new system was 
then itself invalidated by a federal court. Beare v. Sm ith, 
321 F. Supp. 1100 (S.D. Tex. 1971) (three-judge court), aff’d 
sub nom. Beare v. Briscoe, 498 F.2d 244 (5th Cir. 1974); 
see J.A. 359; St. Exh. 17, at 13. Texas also maintained a 
whites-only primary system for over half of this Century; 
the State abandoned that system only after four separate 
decisions of this Court invalidated different forms of that 
system. Terry v. Adam s, 345 U.S. 461 (1953); Sm ith  v. 
Allwright, 321 U.S. 649 (1944); N ixon  v. Condon, 286 U.S. 
73 (1932); N ixon  v. Herndon, 273 U.S. 536 (1927); see J.A. 
359; St. Exh. 17, at 5-12. In 1973, this Court upheld a 
district court’s conclusion that a state-wide legislative 
reapportionment employing multimember districts pur­
posefully diluted black and Hispanic voting strength 
in violation of the Fourteenth Amendment. White v. 
Regester, 412 U.S. 755. Since that decision, courts have 
found that various levels of state government have diluted 
black and Hispanic voting strength in violation of Section



34

2. St. Exh. 17, at 18-23. And as recently as 1991, Texas’s 
redistricting plan for the State House of Representatives 
deliberately fragmented and packed the Hispanic pop­
ulation in certain areas of the State, which led the 
Attorney General to interpose an objection under Section 
5. J.A. 365-366.

Texas could reasonably believe that the significant 
racial polarization present in the State is, at least in part, 
a consequence of that long and deplorable history of voting 
discrimination. The State could also have reasonably be­
lieved that the persistent and severe pattern of racially 
polarized voting was “circumstantial evidence of racial 
bias operating through the electoral system to deny 
minority voters [in Dallas and Harris Counties] equal 
access to the political process.” N ipper  v. Sm ith, 39 F.3d 
1494, 1524 (11th Cir. 1994) (en banc) (plurality opinion), 
cert, denied, 115 S. Ct. 1795 (1995). When a State has 
“essentially become a ‘passive participant’ in a system of 
racial exclusion practiced” by private parties within its 
jurisdiction, it may “take affirmative steps to dismantle 
such a system.” Croson, 488 U.S. at 492 (opinion of 
O’Connor, J.). As Justices White, Stevens, and then- 
Justice Rehnquist observed in applying that principle to 
the redistricting context, a State is not “powerless to 
minimize the consequences of racial discrimination by 
voters when it is regularly practiced at the polls.” United 
Jewish Organizations of Williamsburgh, Inc. v. Carey, 
430 U.S. 144, 167 (1977) (opinion of White, J.). In such 
circumstances, a State may take steps to ensure that 
minority group members are not substantially under­
represented when compared to their percentage in the 
relevant population. Ibid. Thus, even if it had not been 
possible to satisfy the Gingles compactness requirem ent 
in Dallas and Harris Counties, the drawing of three 
minority opportunity districts would have served Texas’s



35

compelling interest in countering the effects of racial 
polarization at the polls.

The district court discounted that compelling in terest 
because it found “no evidence” that the State drew the 
challenged districts in order to “eradicate] particular 
instances of racial inequality.” J.S. App. 89a n.53. The 
district court misapprehended the legal significance of the 
evidence before it. As the district court itself noted, the 
record before it contained ample evidence that Texas felt 
compelled to draw minority opportunity districts as a 
remedy for the consistent racially polarized voting in 
Dallas and Harris Counties. Id. at 9a. Racial polarization 
that leaves minority group members severely under­
represented when compared to their percentage in the 
population is an “instanceQ of racial inequality” that the 
State has a compelling interest in remedying.

C. Districts 18, 29, And 30 Are Narrowly Tailored To 
Achieve The State’s Compelling Interests

1. In Shaw v. Reno, this Court held that a plan is not 
narrowly tailored if it goes “beyond what [is] reasonably 
necessary” to achieve the State’s compelling interests. 
113 S. Ct. at 2831. The Court did not fully elaborate on the 
meaning of that standard. In cases involving employment 
goals and public contracting set asides, however, the 
Court has set forth several factors that are relevant to the 
narrow tailoring inquiry in those areas. See A darand , 
115 S. Ct. at 2118; Croson, 488 U.S. at 507-508; Paradise, 
480 U.S. at 171 (opinion of Brennan, J.); id. at 187 (Powell, 
J., concurring). Those factors include: the efficacy of 
alternative remedies, the flexibility and duration of the 
remedy, the relationship of a remedial goal to the 
proportion of minority group members in the relevant 
labor pool, and the impact of the remedy on third parties. 
Id. at 171 (opinion of Brennan, J.).



36

Those principles suggest three narrow tailoring re­
quirements in the present context. First, a State may not 
create more minority opportunity districts than required 
by the State’s interest in complying with the Voting 
Rights Act or eliminating the effects of racial polari­
zation. See Shaw  v. H unt, 861 F. Supp. at 446; Hays v. 
Louisiana, 839 F. Supp. 1188, 1207 (W.D. La. 1993) (three- 
judge court), vacated and remanded on other grounds, 114 
S. Ct. 2731 (1994). Thus, when the State draws d istricts 
along racial lines, it must do so only to the extent required 
by its compelling interests and not for reasons of “simple 
racial politics.” Shaw  v. Reno, 113 S. Ct. at 2824.

Second, a State may not “pack” minority voters by 
creating districts that “contain substantially larger 
concentrations of minority voters than is reasonably 
necessary to give minority voters a reasonable opportu­
nity to elect representatives of their choice in those 
districts.” Shaw  v. H unt, 861 F. Supp. at 446; accord 
Hays, 839 F. Supp. at 1207. That requirement ensures 
that voters are not treated on the basis of race any 
more than is necessary to meet the State’s compelling 
interests. See M iller, 115 S. Ct. at 2485-2486; Shaw  v. 
Reno, 113 S. Ct. at 2828.

Finally, consideration must be given to the extent to 
which the districts drawn by a State substantially depart 
from its customary redistricting practices. Just as sub­
stantial departures from traditional redistricting prac­
tices may signal that race is the predominant motive in a 
State’s redistricting plan, see M iller, 115 S. Ct. at 2486, so 
too such substantial departures may show that the State 
has given race more of a role in shaping districts than is 
necessary to meet its compelling interests. Thus, when a 
district substantially departs from a State’s traditional 
districting principles, the State may be required to 
counter the inference that race was given a greater role



37

than necessary by showing that the boundaries utilized 
were necessary either to achieve its compelling in terest 
or to achieve its compelling interest while simultaneously 
achieving other legitimate redistricting goals.

Texas’s plan is narrowly tailored under those 
principles. The plan creates no more than the number 
of minority opportunity districts in Harris and Dallas 
Counties required by Section 2 and necessary to coun­
teract the effects of polarized voting and prevent severe 
underrepresentation of blacks and Hispanics in those 
Counties.

The State’s plan does not needlessly pack minorities 
into the challenged districts. The two black opportunity 
districts contain bare black population majorities. St. 
Exh. 14. And while the Hispanic opportunity district has a 
60.6% Hispanic population, that district is only 42.5% 
Hispanic in citizen voting-age population. Ibid. Although 
the State might possibly have constructed districts with 
somewhat lower minority percentages and still have 
provided the relevant minority groups an opportunity to 
elect representatives of their choice, a State is not 
requited to act with mathematical precision in fulfilling 
its compelling interests. Particularly at the time of 
redistricting, a State can only roughly calculate what may 
be necessary. A State may also properly seek to provide 
some margin of safety in case its estimates prove faulty. 
The districts d ra w  by Texas in this case contain 
minority percentages that are well within the range of 
what the State could reasonably have thought appropriate 
to ensure a meaningful opportunity to elect. See Ketchum  
v. Byrne, 740 F.2d 1398, 1413, 1417 (7th Cir. 1984), cert, 
denied, 471 U.S. 1135 (1985); Jeffers v. Clinton, 756 F. 
Supp. 1195 (E.D. Ark. 1990) (three-judge court), aff’d mem., 
498 U.S. 1019 (1991).



38

The challenged districts are more irregular in shape 
than districts previously drawn in Texas. Those irregu­
larities, however, were necessary to create districts that 
furthered the State’s compelling interest in creating 
minority opportunity districts while at the same time 
serving the State’s interest in protecting incumbents 
Bryant and Frost (and potential candidate Johnson) in 
Dallas County and incumbent Andrews (and potential 
candidates Green and Martinez) in Harris County. See 
pp. 7-9, 11, supra. Because of the importance that the 
State attached to protecting incumbents (and aspiring 
candidates from the state legislature), the State could not 
have advanced its compelling interest in creating minor­
ity opportunity districts except by drawing irregularly  
shaped districts.

2. The district court nonetheless concluded that 
D istricts 18, 29, and 30 were not narrowly tailored. The 
court held that, “to be narrowly tailored, a district must 
have the least possible amount of irregularity in shape, 
making allowances for traditional districting criteria .” 
J.S. App. 91a. It reasoned that, “[bjecause a Shaw  claim 
embraces the district’s appearance as well as its racial 
construction, narrow tailoring must take both these 
elements into account.” Ibid. Under the court’s approach, 
a State must not only demonstrate a compelling in terest 
for creating a minority opportunity district, but it must 
also demonstrate a separate compelling justification for 
drawing an irregular minority opportunity district. Ibid. 
Noting that “Shaw  nowhere refers to incumbent 
protection as a traditional districting criterion,” id. at 
69a, the district court then held that protecting in­
cumbents is not the kind of compelling interest that the 
State may pursue at the expense of compactness, id. at 
68a-69a, 88a, 91a. Because the court concluded that the 
State could have drawn substantially more compact



39

minority opportunity districts, and because the court 
rejected incumbency protection as a permissible basis for 
departing from compactness, the court held that the three 
districts at issue here were not narrowly tailored. Id. 
at 86a-93a. That conclusion was incorrect for several 
reasons.

a. First, the court’s view that a Shaw  claim embraces 
a district’s appearance as well as its racial composition is 
based on a misunderstanding of the nature of a Shaw  
claim. This Court held in M iller that “[sjhape is relevant 
[to a Shaw  claim] not because bizarreness is a necessary 
element of the constitutional wrong or a threshold re­
quirement of proof, but because it may be persuasive 
circumstantial evidence that race for its own sake, and not 
other districting principles, was the legislature’s domi­
nant and controlling rationale in drawing its district 
lines.” 115 S. Ct. at 2486. There is therefore no basis for 
the district court’s holding that a State is required to 
provide a compelling justification for a district’s appear­
ance as well as its racial composition. The district court’s 
rule “ ‘confuse[s] the purpose of Shaw’s strict scrutiny 
standard,’ which is not to ensure that the state creates 
wise or aesthetically-pleasing districts, but to ensure that 
it ‘is not covertly pursuing forbidden ends’ when it draws 
district lines.” Shaw  v. Hunt, 861 F. Supp. at 451.

As we have discussed, a district’s irregular appearance 
may signal that race has been given greater weight than 
necessary to further a State’s compelling interest. A 
State may have to counter that inference by showing that 
its approach was necessary to further the State’s com­
pelling interest in creating minority opportunity d istricts 
while protecting other legitimate redistricting in terests 
at the same time. But that is very different from re­
quiring the State to provide an additional compelling



40

justification  for its decision to draw irregularly shaped 
districts.

b. Second, by holding that Texas could not pursue its 
desire to protect incumbents at the expense of creating 
compact districts, the district court usurped the S tate’s 
power to determine its own redistricting priorities. “It is 
well settled that ‘reapportionment is primarily the duty 
and responsibility of the State.’ ” M iller, 115 S. Ct. at 2488 
(quoting Chapman v. Meier, 420 U.S. 1,27 (1975)); see also 
Voinovich, 113 S. Ct. at 1156-1157; Growe, 113 S. Ct. at 
1081. Redistricting is a “highly political task,” id. at 1080, 
and decisions concerning which districting criteria to 
apply involve essentially political “choices about the 
nature of representation,” Burns v. Richardson, 384 U.S. 
73, 92 (1966). Unless a state redistricting plan violates 
the Constitution or a federal statute, federal courts must 
defer to state reapportionment policy, no m atter how un­
wise that policy may appear to be. See Upham, 456 U.S. at 
42 (per curiam).

Consistent with those principles, a State may legiti­
mately seek to protect incumbents in redistricting and 
may permissibly conclude that furthering that interest is 
more important to it than drawing compact districts. This 
Court’s decision in White v. Weiser, 412 U.S. 783 (1973), is 
particularly instructive on that point. In Weiser, the 
Court held that a lower court had erred in imposing as a 
remedy for a one-person, one-vote violation a red istricting  
plan that disregarded the State’s policy of incumbency 
protection in order to create compact districts. Id. at 793- 
797. Explaining that the State had made the political 
decision that protecting incumbents was a more important 
state interest than maintaining compact districts, the 
Court held that “the District Court’s preferences do not 
override whatever state goals were embodied in” the 
State’s plan. Id. at 796. The district court’s holding in



41

this case that Texas could not give greater weight to 
incumbency protection than it gave to compactness 
conflicts with Weiser, as well as with other cases resting 
on the same basic principle of federalism. See Karcher v. 
Daggett, 462 U.S. 725, 740 (1983) (“avoiding contests be­
tween incumbent Representatives” is a legitimate State 
redistricting policy); Gaffney v. Cummings, 412 U.S. 735, 
751-754 & n.18 (1973) (State may draw irregular d istrict 
lines, splitting political subdivisions, in order to allocate 
seats to major political parties in proportion to their state­
wide strength); Burns, 384 U.S. at 89 n.16 (State may draw 
district lines to avoid contests between incumbents).

c. The district court’s approach to the issue of narrow 
tailoring also undermines the goal of encouraging volun­
tary compliance with the law. As a practical matter, many 
jurisdictions may be unwilling to meet their obligations 
under Section 2 voluntarily if they must sacrifice what 
they deem to be an important policy of protecting in­
cumbents in order to do so. This case is a good example. 
The district court found that, in order to protect 
incumbents, district boundaries throughout Texas fre­
quently “divided counties, cities, neighborhoods, and 
regions.” J.S. App. 68a. Incumbency protection is re­
sponsible for the fact that at least two Texas d istric ts 
that are overwhelmingly white in composition are as 
irregularly shaped as the districts at issue here. Lawson 
J.S. 4-5. In its 1991 redistricting, Texas did what it took to 
protect incumbents. J.S. App. 68a. If relatively compact 
districts provided such protection, compact districts were 
drawn. If substantial departures from compactness were 
needed to protect incumbents, that was done as well. And 
if extreme departures from compactness were required, 
even extreme departures were utilized. A State that has 
undertaken such strong efforts to protect incumbents is



42

unlikely voluntarily to abandon that concern in order to 
comply with Section 2.

The district court’s narrow tailoring approach fails to 
take that political reality into account. If Congress’s pur­
poses are to be advanced, however, a State should not be 
forced to choose between creating minority opportunity 
districts in order to comply with Section 2 and protecting 
incumbents. A State should instead be permitted to 
accomplish both goals simultaneously, even if that means 
that highly irregular districts will be drawn. The district 
court’s contrary view is “at odds with this Court’s and 
Congress’ consistent emphasis on ‘the value of voluntary 
efforts to further the objectives of the law.’ ” Wygant, 
476 U.S. at 290 (O’Connor, J., concurring in part and 
concurring in the judgment).

d. The district court’s use of district shape in applying 
the narrow tailoring requirement also raises serious 
equal protection concerns. Under the district court’s 
standard, a State is free to depart from principles of 
compactness whenever it chooses—except when it wishes 
to further a compelling interest in avoiding the dilution of 
minority voting strength. That result seriously distorts 
the purposes of the Equal Protection Clause. “[T]he 
driving force behind the adoption of the F ourteenth 
Amendment was the desire to end legal discrimination 
against blacks.” M iller, 115 S. Ct. at 2497 (O’Connor, J., 
concurring). A State that has, over time, system atically 
given greater weight to incumbency protection than to 
compactness in districting decisions should not be 
precluded from following the same course when it decides 
to further its compelling interest in complying with 
Section 2.

3. The district court sought to cast doubt on the 
legitimacy of the State’s pursuit of incumbency protection 
on three grounds. None is persuasive.



43

First, the district court sought to distinguish this 
Court’s cases recognizing the legitimacy of incumbency 
protection on the ground that Texas had pursued that goal 
in a particularly aggressive manner. J.S. App. 67a-68a. 
The court stated that “never before have districts been 
drawn on a block-by-block or neighborhood- or town­
splitting level to corral voters perceived as sympathetic to 
incumbents or to exclude opponents of the incumbents.” 
Ibid. The court found it particularly objectionable that 
“[t]he Legislature obligingly carved out districts of 
apparent supporters of incumbents, as suggested by the 
incumbents, and then added appendages to connect their 
residences to those districts.” Id. at 68a. According to the 
court, “[t]he final result seems not one in which the people 
select their representatives, but in which the repre­
sentatives have selected the people.” Ibid.

Texas’s zeal in protecting incumbents may raise 
serious policy concerns. In light of Weiser, however, 
there is no basis in the Constitution for rejecting the kind 
of incumbency protection practiced in this case. Texas 
may not be acting wisely in believing that protecting 
incumbents is more important than other d istricting 
considerations. But those are precisely the kinds of 
“choices about the nature of representation” (Burns, 384 
U.S. at 92) that are entrusted to States under the 
Constitution. A federal district court may not usurp that 
state function under the guise of conducting a narrow 
tailoring inquiry.

Second, the district court characterized the United 
States’ argument as “implicitly equating incumbent pro­
tection with a compelling state interest.” J.S. App. 91a. 
The United States does not regard incumbency protection 
as a compelling state interest, and we have not argued that 
it is. Rather, our argument is that, in pursuing its 
compelling interest in creating minority opportunity



44

districts in order to comply with Section 2, a State may 
legitimately decide to give greater weight to incumbency 
protection than to drawing compact districts.

Finally, the district court concluded that the S tate’s 
policy of protecting incumbents involved impermissible 
race-based action because Democratic incumbents, par­
ticularly Frost and Bryant in Dallas, sought to include 
black voters in their districts. J.S. App. 79a-81a, 85a. As 
the evidence shows, however, Frost and Bryant generally 
strove to keep in their districts as many Democratic areas 
that they had previously represented as possible— 
regardless of the race of the voters in the areas. Id. at 35a- 
38a & n.23. For example, Frost and Johnson fought vigor­
ously over a largely white Democratic portion of Grand 
Prairie before compromising and splitting the area be­
tween them. U.S. Exh. 1071, at 37-40.

It is true that many of the areas over which Frost, 
Bryant, and Johnson struggled most intensely were 
predominantly black areas. But that is because those 
areas were heavily Democratic and had provided con­
sistent support to Frost and Bryant in previous elections. 
J.S. App. 35a-38a & n.23. In fact, evidence indicated that 
97% of black voters in the Dallas-Fort Worth area had 
voted in the Democratic primary. Id. at 37a. As one 
witness cited by the district court explained, “Frost and 
Bryant were not concerned about the race of these voters. 
They just wanted to hold onto enough Democrats to as­
sure reelection.” Id. at 36a.

Given those undisputed facts about the motivation of 
Frost and Bryant, the district court erred as a m atter of 
law in holding that the inclusion of black voters in their 
districts constituted impermissible racial discrimination. 
Under this Court’s decisions, to constitute impermissible 
discrimination under the Equal Protection Clause, action 
must taken because of, rather than merely with knowledge



45

of, a person’s race. See M iller, 115 S. Ct. at 2488; see 
Personnel Adm inistrator  v. Feeney, 442 U.S. 256, 279 
(1979). Here, the evidence showed that black voters were 
moved into Frost’s and Bryant’s districts because of their 
party affiliation, not because of their race.3

For the reasons discussed, the district court applied an 
incorrect legal standard on both the compelling in terest 
and narrow tailoring prongs of strict scrutiny. Moreover, 
the evidence we have discussed shows that the State’s plan 
satisfies strict scrutiny under the correct legal standards. 
The district court, however, has not yet issued findings of 
fact under the correct standards and this Court may not 
wish to perform that function in the first instance. 
Accordingly, the district court’s judgment should be 
reversed or, alternatively, the decision should be vacated 
and the case remanded for a decision under the correct 
legal standards.

3 While incumbency protection is a legitimate redistricting crite­
rion, it would not justify a plan that dilutes minority voting strength 
in violation of Section 2. See S. Rep. No. 417, su p ra , at 29 & n.117. 
Moreover, as courts have recognized, an asserted interest in protecting 
incumbents can mask intentional discrimination against minority 
voters. See Garza v. C ounty o f  Los A ngeles, 918 F.2d 763, 771 (9th Cir. 
1990), cert, denied, 498 U.S. 1028 (1991); id. at 778-779 (Kozinski, J., 
concurring and dissenting in part); K etch u m , 740 F.2d at 1408; R y b ic k i  
v. S ta te  Bd. o f  E le c tio n s , 574 F. Supp. 1082, 1109 (N.D. 111. 1982) (three- 
judge court). Here, the State sought to serve both its interest in 
avoiding diluting minority voting strength and its interest in 
protecting incumbents.



46

CONCLUSION
The judgment of the district court should be reversed 

or, alternatively, the decision should be vacated and the 
case remanded for a decision under the correct legal 
standards.

Respectfully submitted.

Drew  S. Days, III 
Solicitor General 

Deval L. P atrick 
Assistant Attorney General

Paul Bender 
Deputy Solicitor General

I rving L. Gornstein  
Assistant to the Solicitor General 

Steven  H. Rosenbaum 
Samuel R. Bagenstos 

Attorneys
A ugust 1995