No. 94-805, 94-806, and 94-988 In the Supreme Court of the United States OCTOBER TERM, 1995 GEORGE W. BUSH, GOVERNOR OF TEXAS, ET AL., APPELLANTS V. AL VERA, ET AL. REV. WILLIAM LAWSON, ET AL., APPELLANTS V. AL VERA, ET AL. UNITED 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 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether Districts 18, 29, and 30 in Texas's congres- sional redistricting plan are narrowly tailored to further a compelling interest. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDING Plaintiffs are Al 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. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page 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 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases Continued: Page 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 US. 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 of Sheet Metal Workers' Int'1 Ass'n v. EEOC', 478 Us. 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 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Rybicki v. State Bd. of Elections, 574 F. Supp. 1082 (N.D. III. 1982) . . . . 45 Seamen 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 Williamsburgh, 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 ---------------------------------------- Page Break ---------------------------------------- VI Constitution and statutes-Continued: Page Amend. XV . . . . 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 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States 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 UNITED 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. 1a-104a) is reported at 861 F. Supp. 1304. (1) ---------------------------------------- Page Break ---------------------------------------- 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 juris- diction on June 29, 1995. 115 S. Ct. 2639 (1995). The juris- 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. 111a-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 districts 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 ---------------------------------------- Page Break ---------------------------------------- 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); Smith v. Allwright, 321 U.S. 649 (1944) (same); Nixon v. Condon, 286 U.S. 73 (1932) (same); Nixon 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 Angles 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), ---------------------------------------- Page Break ---------------------------------------- 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' districts 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, ---------------------------------------- Page Break ---------------------------------------- 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 ---------------------------------------- Page Break ---------------------------------------- 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 18a-21a. 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. US. 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. Pl. 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, Harris County is divided among seven congressional districts. Three of those districts thaw all of their population from `Harris County and one draws most of its population from it. Pl. 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. ___________________(footnotes) 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, ---------------------------------------- Page Break ---------------------------------------- 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. Williams 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- ---------------------------------------- Page Break ---------------------------------------- 8 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, Frost's and Bryant'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 district 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 Frost'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 district 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 ---------------------------------------- Page Break ---------------------------------------- 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 Frost'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; 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. District 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 redistricting, 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. ---------------------------------------- Page Break ---------------------------------------- 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 Pl. 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 opportunist y 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 ---------------------------------------- Page Break ---------------------------------------- 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 PI. 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 Harris 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- cleaned the State's 1991 redistricting plan under Section 5 of the Voting Rights Act. J.A. 343-344. The State's plan ---------------------------------------- Page Break ---------------------------------------- 12 was then challenged by plaintiffs who alleged that it violated Section 2 of the Voting Rights Act and a constitutional prohibition against partisan gerrymander- 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 gerry- 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 districts 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 strict 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- ---------------------------------------- Page Break ---------------------------------------- 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 35 of the Voting Rights Act if it failed to protect District 18 and set aside [Districts 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]ecause a Shaw claim embraces the district's appear- ance as well as its racial construction, narrow tailoring must take both 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 y 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, ---------------------------------------- Page Break ---------------------------------------- 14 reasoning that the argument "implicitly equat[ed] incum- bent protection with a compelling state interest." Id. at 91a. The court noted that "Shaw nowhere refers to incumbent protection as a traditional districting 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 interests 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 interest. 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- ---------------------------------------- Page Break ---------------------------------------- 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 requirement, 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 opportunist y 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 ---------------------------------------- Page Break ---------------------------------------- 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. Districts 18, 29, and 30 were narrowly tailored to further the State's two compelling interests. A State'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 necessary to comply with the Voting Rights Actor 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 interest 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- ---------------------------------------- Page Break ---------------------------------------- 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 Introduction In their briefs, the State of Texas and the Lawson/LULAC interveners argue that the lower court erred in its decision to apply strict scrutiny to the congressional districts at issue on this appeal. In Miller v. Johnson, 115 S. Ct. 2475 (1995), this Court held that strict 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 Miller decision and the district court did not have the benefit of the Miller 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 ---------------------------------------- Page Break ---------------------------------------- 18 whether and to what extent incumbency protection ex- plained the challenged districts (J.S. App. 66a-72a). That refusal was inconsistent with Miller. 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, 106-167 (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. Pews, 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 restraints if it satisfies the `narrow tailoring' test this Court has set out in previous cases." Ibid. The minority opportunity districts at issue in this case are narrowly tailored to further Texas's compelling interests in complying with Section 2 of the Voting ---------------------------------------- Page Break ---------------------------------------- 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 Miller 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 juris- 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. ---------------------------------------- Page Break ---------------------------------------- 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, ---------------------------------------- Page Break ---------------------------------------- 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, "[empirical findings by 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., 4$8 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' Int'l Ass'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, ---------------------------------------- Page Break ---------------------------------------- 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 US. 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 Y. 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 Miller v. Johnson, supra, do not cast doubt upon the constitu- tionality of Section 2. The Court explained in Shaw and Miller that government action that "separate[s] 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. ` " Miller, 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. Growe 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. ---------------------------------------- Page Break ---------------------------------------- 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." Miller, 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. Miller, 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, 430 U.S. 616, 652-653 (1987) (O'Connor, J., concurring in the judgment); Wygant v. Jackson Bd. of 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 inter- ests" in the districting process. Miller, 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 ---------------------------------------- Page Break ---------------------------------------- 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 Grove, 113 S. Ct. at 1084. After establishing the three Gingles preconditions, plain- tiff 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 districts 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 ---------------------------------------- Page Break ---------------------------------------- 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 opportunist y 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) ---------------------------------------- Page Break ---------------------------------------- 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 opportunist y district. J.A. 141. The existence of those two alternative districts. established that the State had a ---------------------------------------- Page Break ---------------------------------------- 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. Williams 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 Williams 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. ---------------------------------------- Page Break ---------------------------------------- 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 His- 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 ___________________(footnotes) 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 Seamon v. Upham, No. P-81-49-CA (E-D. T- 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 1960 redistricting, however, Dallas County supported less than three districts. U.S. Exh. 1085. Moreover, Seamon was decided before the district court had issued its decision in Williams on the extent of racial polarization in Dallas County. The legislature was entitled to take into amount the fact that the Dallas County population now supports three and one- third districts and to rely on the more recent Williams findings in concluding that Section 2 now requires a black opportunity district. ---------------------------------------- Page Break ---------------------------------------- 29 all racial minority groups and provides States with no clear basis on which to choose which of two similar- ly situated minority groups to protect from dilution. If the State had drawn only a black opportunist y 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 Harris 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 Harris County. J.A. 251. The legislators involved in redistricting were also aware that the black/Hispanic coalition in Harris 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- ---------------------------------------- Page Break ---------------------------------------- 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 Harris 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 Harris 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 districts 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 districts actually drawn by the State do not satisfy the Gingles ---------------------------------------- Page Break ---------------------------------------- 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 districts that led it to conclude that Section 2 required it to create minority opportunity districts in the first place. Shaw v. Hunt, 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 matter 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 requirements of federal law); cf. McGhee v. Granville County, 860 F.2d 110, 120- 121 & n.11 (4th Cir. 1988) (county may remedy violation of ---------------------------------------- Page Break ---------------------------------------- 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 Harris 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 ---------------------------------------- Page Break ---------------------------------------- 33 achieve that remedial purpose. See Adarand, 115 S. Ct. at 2117; Croson, 488 U.S. at 491493,509 (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. Smith, 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. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932); Nixon 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 ---------------------------------------- Page Break ---------------------------------------- 34 2. St. Exh. 17, at 18-23. And as recently as 1991, Texas's redistricting plan for the State House of Representative es 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." Nipper v. Smith, 39 F.3d 1494, 1524 (11th Cir. 19941 (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 Williamsburg, 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 requirement in Dallas and Harris Counties, the drawing of three minority opportunity districts would have served Texas's ---------------------------------------- Page Break ---------------------------------------- 35 compelling interest in countering the effects of racial polarization at the polls. The district court discounted that compelling interest 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 "instance[] 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 Adarand, 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.). ---------------------------------------- Page Break ---------------------------------------- 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. Hunt, 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 districts 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. Hunt, 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 Miller, 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 Miller, 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 ---------------------------------------- Page Break ---------------------------------------- 37 than necessary by showing that the boundaries utilized were necessary either to achieve its compelling interest 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 required 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 drawn 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). ---------------------------------------- Page Break ---------------------------------------- 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 Districts 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, `[b]ecause 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 interest 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 ---------------------------------------- Page Break ---------------------------------------- 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 Miller that "[s]hape 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 raciaI 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 districts while protecting other legitimate redistricting interests at the same time. But that is very different from re- quiring the State to provide an additional compelling ---------------------------------------- Page Break ---------------------------------------- 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 State's power to determine its own redistricting priorities. "It is well settled that `reapportionment is primarily the duty and responsibility of the State.'" Miller, 115 S. Ct. at 2488 (quoting Chapman v. Meier, 420 U.S. 1,27 (1976)); 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 matter 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 redistricting 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 ---------------------------------------- Page Break ---------------------------------------- 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 district 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 districts 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 ---------------------------------------- Page Break ---------------------------------------- 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 (0'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 Fourteenth Amendment was the desire to end legal discrimination against blacks." Miller, 115 S. Ct. at 2497 (O'Connor, J., concurring). A State that has, over time, systematically 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 cm the legitimacy of the State's pursuit of incumbency protection on three grounds. None is persuasive. ---------------------------------------- Page Break ---------------------------------------- 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 districting considerations. But those are precisely the kinds of "choices about the nature of representation" (Burns, 364 U.S. at 92) that are entrusted to States under the Constitution. A federal district court may not usurp that stat e 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 ---------------------------------------- Page Break ---------------------------------------- 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 State'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. M. 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 matter 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 ---------------------------------------- Page Break ---------------------------------------- 45 of, a person's race. See Miller, 115 S. Ct. at 2488; see Personnel Administrator 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 interest 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. ___________________(footnotes) 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, supra, 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. County of Los Angeles, 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); Ketchum, 740 F.2d at 1408 Rybicki v. State Bd. of Elections, 574 F. Supp. 1082, 1109 (N.D. Ill. 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. ---------------------------------------- Page Break ---------------------------------------- 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. PATRICK Assistant Attorney General PAUL BENDER Deputy Solicitor General IRVING L. GORNSTEIN Assistant to the Solicitor General STEVEN H. ROSENBAUM SAMUEL R. BAGENSTOS Attorneys AUGUST 1995 ---------------------------------------- Page Break ---------------------------------------- No. 94-805, 94-806, and 94-988 In the Supreme Court of the United States OCTOBER TERM, 1995 GEORGE W. BUSH, GOVERNOR OF TEXAS, ET AL., APPELLANTS v. AL VERA, ET AL. REV. WILLIAM LAWSON, ET AL., APPELLANTS v. AL VERA, ET AL. UNITED STATES OF AMERICA, APPELLANT v. AL VERA, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS REPLY BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases Page Adarand Constructors, Inc. v. Pena, 115S. Ct. 2097 (1995) . . . . 11 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) . . . . 2 Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984), aff'd in part, rev'd in part sub nom. Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 12 Gomez v. City of Watsonville, 863 F.2d 1407 (9th Cir. 1988), cert. denied, 489 U.S. 1080 (1989) . . . . 12 Johnson v. DeGrandy, 114 S. Ct. 2647 (1994) . . . . 3, 4, 9 League of United Latin American Citizens v. Clements, 999 F.2d 831(5th Cir. 1993), cert. denied, 114 S. Ct. 878 (1994) . . . . 6, 7 McGhee v. Granville County, 860 F.2d 110 (4th Cir. 1988) . . . . 12, 13 Miller v. Johnson, 115 S. Ct. 2475 (1995) . . . . 2, 10 Morris v. City of Houston, 894 F. Supp. 1062 (S.D. Tex. 1995) . . . . 7 Shaw v. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 11 Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 3, 4, 6, 10 Williams v. City of Dallas, 734 F. Supp. 1317 (N.D. Tex. 1990) . . . . 5, 6 Statutes: Voting Rights Acts of 1965,42 U.S.C. 1971, 1973 et seq.: 2, 42 U.S.C. 1973 . . . . 2, 3, 4, 5, 10, 11, 12, 13, 14 2(b), 42 U.S.C. 1973(b) . . . . 10 (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States October Term, 1995 No. 94-8O5 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 UNITED STATES OF AMERICA, APPELLANT v. AL VERA, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS REPLY BRIEF FOR TEE UNITED STATES We argue in our opening brief (Br. 26-32) that 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, because it had a strong basis in evidence for concluding that such districts were required by (1) ---------------------------------------- Page Break ---------------------------------------- 2 Section 2 of the Voting Rights Act of 1965,42 U.S.C. 1973, We also argue (Br. 35-45) that the districts drawn by the State satisfy the narrow tailoring requirement of strict scrutiny. While the districts are irregular in shape, that approach was necessary in order for the State to comply with Section 2 while simultaneously protecting its incumbents. Finally, we argue (Br. 32-35) that the districts constitu- tionally serve the State's compelling interest in eliminating the effects of racially polarized voting. Nothing in appellees' response undermines the force of those arguments. 1. Appellees argue (Br. 46-47) that, before using race to draw district lines in order to comply with Section .2, a State must first create districts by following its customary districting practices. Only if that process results in a plan that violates Section 2, appellees contend, may the State use race in drawing district lines. This Court has consistently held, however, that a government can demonstrate a compelling interest in race-conscious action by showing "a strong basis in evidence of the harm being remedied." Miller v. Johnson, 115 S. Ct. 2475, 2491 (1995); Shaw v. Reno, 113 S. Ct. 2816, 2832 (1993); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 600 (1989). Accordingly, if a State has a strong basis in evidence for concluding that it must create minority opportunity districts in order to comply with Section 2, it may include such districts in its redistricting plan from the outset. There is no requirement that a State go through the redistricting process twice before it may create minority opportunity districts in order to comply with Section 2. 2. Appellees argue (Br. 45-56) that the predicates for a Section 2 violation were not established in this ---------------------------------------- Page Break ---------------------------------------- 3 case, and that the State therefore could not invoke its compelling interest in complying with Section 2. As we explain in our opening brief (Br. 26-30), however, each of the three preconditions for a Section 2 violation was established (see Thornburg v, Gingles, 478 U.S. 30, 50-51 (1986)), and the failure to draw one black opportunity district in Dallas County and one black and one Hispanic opportunity district in Harris County would have left minority voters in those areas substantially underrepresented when compared to their percentage of the population. The State there- fore had a strong basis in evidence for concluding that three minority opportunity districts were required by Section 2. a. Appellees contend (Br. 48-50) that the Gingles compactness requirement was not satisfied because the districts actually drawn by Texas are not compact. As this Court explained in Gingles, how- ever, the sole purpose of the compactness require- ment is to determine whether minority voters "possess the potential to elect representatives in the absence of the challenged structure or practice" and therefore "have been injured by that standard or practice." 478 U.S. at 50 n.17. For that reason, the relevant inquiry under Gingles is not whether a particular district actually drawn in order to comply with Section 2 is compact, but whether a reasonably compact district could have been drawn. Id. at 38. As this Court has stated, the compactness and numero- sity precondition addresses "the possibility of creat- ing more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice?" Johnson v. DeGrandy, 114 S. Ct. 2647, 2655 (1994). (emphasis added). ---------------------------------------- Page Break ---------------------------------------- 4 In this case, the evidence shows that it was possible to draw one reasonably compact district in Dallas County that would have afforded black voters the potential to elect, U.S. Br. 26. The evidence also shows that, in Harris County, it was possible to draw either one reasonably compact district in which black voters would have had the potential to elect, or one reasonably compact district in which Hispanics would have had the potential to elect. Id. at 28-29. Appellees concede (Br. 66-67) that it was possible to draw such districts. The Gingles compactness requirement was therefore satisfied. See U.S. Br. 26-29. 1. While framed in terms of the Gingles compactness requirement, appellees' real argument is that a State seeking to comply with Section 2 must include in its redistricting plan the geographically compact dis- ___________________(footnotes) 1. Appellees "doubt" that it was possible to draw a compact district in Harris County in which Hispanics would have constituted a majority of the citizen voting age population (CVAP). Br. 49 n.44. They also assert that there is no evi- dence that a compact majority black district could have been drawn in Dallas County. Br. 50 n.45. As we explain in our opening brief (Br. 24-25), this Court has reserved the question whether minority group members must constitute a CVAP majority in order to satisfy the first Gingles precondition, as well as the related question whether the first precondition would be satisfied by proof that the relevant minority group could constitute a sizable minority in a district and could elect candidates of their choice by attracting some cross-over votes. DeGrandy, 114 S. Ct. at 2655-2656. Because the "strong basis in evidence" standard permits a State to resolve uncertain Section 2 questions in favor of the reading that is more protective of minority voting rights, the State in this case was entitled to proceed on the assumption that the first Gingles precondition would be satisfied by a showing that it was possible to draw a district in which the relevant minority group would have had the potential to elect. Gingles, 478 U.S. at 50 n.17. ---------------------------------------- Page Break ---------------------------------------- 5 tricts that led it to conclude that Section 2 required it to create minority opportunity districts. As we dis- cuss in our opening brief (Br. 30-32), however, so long as a State's plan affords minority voters an equal opportunity to participate in the political process. and to elect representatives of their choice, Section 2 is satisfied; federal law does not require a State to meet its Section 2 obligations by drawing compact districts. b. Appellees next assert (Br. 50-51) that voting in Dallas and Harris Counties is not racially polarized. One year before the legislature adopted the. re- districting plan at issue here, however, a federal district court issued detailed findings concerning bloc voting in Dallas County. Williams v. City of Dallas, 734 F. Supp. 1317, 1387-1394 (N.D. Tex. 1990). That court specifically found that, "in a large number of both at-large and single-member district elections since 1977, the African-American vote was sub- stantially polarized." Id. at 1389-1391. The court also found that analysis of at-large elections since 1975 involving a serious African-American candidate, shows that the choice of the African-American com- munity has always been defeated by substantial white polarized bloc voting." Id. at 1394. Those findings justified the legislature's conclusion that racial bloc voting existed in Dallas County. 2. ___________________(footnotes) 2. Appellees contend (Br. 50 n.47) that the State was not entitled to rely on Williams because the court adopted an "extreme" interpretation of the Voting Rights Act. In support of that contention, appellees point to that court's failure to accord significance to the election of Hispanic City Council candidate, Al Gonzalez. The Williams court found, however, that Gonzalez was elected with substantial white backing in an attempt to head off a Section 2 challenge by Hispanic voters ---------------------------------------- Page Break ---------------------------------------- 6 There was also -overwhelming evidence of racial bloc voting in Harris County. Expert testimony presented at trial established that, in state legislative and congressional elections in the area now covered by District 29, Hispanic candidates, on average, received 95% of the Hispanic vote, but only 2% of the white vote. J.A. 226. The 1992 Democratic primary in District 29 in which Gene Green, who is white, defeated Ben Reyes, who is Hispanic, illustrates the extent of polarized voting in that area. In that election, 99% of the Hispanic voters cast ballots for Reyes, while 91% of white voters cast ballots for Green. St. Exh. 14, App. 2, Table 8. Expert testimony also showed that the area now covered by District 18 also exhibited a high degree of polarization. 4 Tr. 187; J.A. 227. The legislature therefore reasonably con- cluded that voting in Harris County was racially polarized. Appellees contend (Br. 50) that the Fifth Circuit's decision in League of United Latin American Citizens v. Clements, 999 F.2d 831 (1993) (en bane), cert. denied, 114 S. Ct. 878 (1994), held that there is no racial bloc voting in Dallas or Harris Counties. That case, however, involved judicial elections, and the court of appeals' conclusion that party affiliation rather than race determined election outcomes was limited to that specific context. The court reasoned that "judicial elections are low-profile elections in which the voters know little more about the ___________________(footnotes) and that those "very atypical circumstances * * * will not reoccur." 734 F. Supp. at 1324-1325, 1327. The court therefore correctly concluded that voting in Dallas County is racially polarized and that the election of Gonzalez did not suggest otherwise. See Gingles, 478 U.S. at 75-76. ---------------------------------------- Page Break ---------------------------------------- 7 candidates than what they read on the ballot. The voters, therefore, will make their choice based upon the information that the ballot contains-party affiliation." 999 F.2d at 878-879. That analysis has, no application to primary elections or high profile, con- gressional elections. Appellees' reliance (Br. 50) on Morris v. City of Houston, 894 F. Supp. 1062 (S.D. Tex. 1995), is similarly misplaced. In that case, the court examined four nonpartisan local elections in Houston, and concluded that white voters supported Hispanic candidates, in two of them. Id. at 1066. That small sample of nonpartisan elections for local office does not detract from the State's strong basis for believing that racially polarized voting exists in congressional elections in Harris County. Appellees also attribute significance to the success of some minority candidates. Br. 55. Their dis- cussion of those successes, however, is misleading. Appellees point to five minority candidates who have been nominated or elected to statewide office (Br. 3-4), but they fail to discuss whether voting in the elections for those candidates was racially polarized in Dallas and Harris Counties. For example, ap- pellees cite the statewide success of Attorney General Morales. What appellees fail to mention is that, in the 1990 Democratic primary, Morales re- ceived 84% of the Hispanic vote, but only 14% of the white vote, in the area covered by District 29. St. Exh 14, App. 2, Table 8. Similarly, appellees note (Br. 46) that there are a significant number of blacks and Hispanics in the State's congressional and legislative delegations. Appellees fail to include any information, however, on the racial composition. of the districts from which those legislators were elected. In fact, at ---------------------------------------- Page Break ---------------------------------------- 8 the time of redistricting, no black candidate had ever been elected to Congress or the state senate from a majority-white district in Texas, and only two black candidates had ever been elected to the state house from majority-white districts. St. Exh. 17, at 51-55. Similar data exist concerning the failure of Hispanic candidates to win. elections in majority-white dis- tricts. J.A. 252; U.S. Exh. 1095 (letter dated Nov. 12, 1995, at 2). Appellees cite (Br. 4, 50) a table pur- porting to show that black candidates have been successful most of the time in districts in which blacks comprise between 40% and 50% of the population. Except in the two cases in which blacks prevailed in majority-white districts, however, there is no evidence that black success in those districts is attributable to white cross-over voting, rather than coalitions with Hispanic voters. And as we note in our opening brief (Br. 29-30), the black/Hispanic coalition had begun to break down at the time of the 1991 redistricting. The evidence before the district court therefore supported the State's conclusion that voting in Dallas did Harris Counties is racially polarized, and that, absent special circumstances, minority voters in those counties would be unable to elect candidates of their choice in majority-white districts. Appellees cite no persuasive evidence to the contrary. 3. c. Appellees next contend (Br. 56) that the drawing of an Hispanic opportunity district in Harris County ___________________(footnotes) 3. In arguing that there is not polarized voting, appellees repeatedly quote from a report that was not before the district court. Br. 2-5. They also rely on several newspaper articles that were not before the district court. Br. 5, 7. Because that evidence was not presented to the district court, it is not properly before this Court. ---------------------------------------- Page Break ---------------------------------------- 9 goes beyond what is necessary to prevent underrep- resentation of the Hispanic citizen voting age population throughout the State. In this case, how- ever, the State sought to prevent the dilution of the Hispanic vote in Harris County. For that purpose, the relevant proportional representation inquiry is whether the creation of an Hispanic opportunity district in Harris County was necessary to prevent the underrepresentation of Hispanics in Harris County. DeGrandy, 114 S. Ct. at 2662. As we discuss in our opening brief (Br. 30), if the State had not created an Hispanic opportunity district in Harris County, Hispanics in that area would have been substantially underrepresented. Appellees do not suggest otherwise. 4. ___________________(footnotes) 4. Appellees' argument (Br. 56) that Hispanics would have achieved statewide proportional representation, even absent the creation of an Hispanic opportunity district in Harris County, relies on a comparison to the Hispanic proportion of the State's CVAP (18.4'%). The creation of an Hispanic op- portunity district in Harris County was necessary to prevent statewide underrepresentation, however, if a comparison is made to the Hispanic proportion of total population (22.6%) or voting age population (VAP) (22.4%). This Court has not yet decided whether total population, VAP, or CVAP, should be used to measure the proportionality of representation. See DeGrandy, 114 S. Ct. at 2655-2656, 2660 n.14. Because the State's plan sought to forestall the dilution of the Hispanic vote in Harris County, that issue need not be resolved in this case. In Harris County, Hispanics constitute 23% of the total population (U.S. Br. 6), 20% of the VAP (U.S. Exh. 1084), and 13.3% of the CVAP. Under any of those measures, the creation of one Hispanic opportunist y district in Harris County (which has sufficient population to support five districts) was necessary to prevent the underrepresentation of Hispanics in that area. ---------------------------------------- Page Break ---------------------------------------- 10 d. Appellees contend (Br. 53) that a violation of Section 2 cannot be established unless there is proof that minorities have been essentially shut out of the political process, The text of Section 2, however, prohibits all voting practices that provide minority voters with `less" opportunity to participate and to elect than other members of the electorate, not just those that shut out minority voters completely. 42 U.S.C. 1973(b). Consistent with the text of Section 2, this Court in Gingles rejected the interpretation suggested by appellees here. In that case, the Court affirmed a finding of vote dilution in violation of Section 2, even though black voters in some of the multimember districts at issue had been able to elect some candidates of their choice. 478 U.S. at 74-75 & nn. 35-36. Even if appellees' standard were the correct one, it would not assist them here. If the State had not created minority opportunity districts in Dallas and Harris Counties, minority voters from those two areas would have been effectively shut out of any opportunity to elect a representative of their choice. 3. Appellees contend (Br. 60-68) that the districts at issue in this case do not satisfy the narrow tailoring requirement for two reasons. Neither is persuasive. a. Appellees first contend (Br. 61-64) that a plan cannot be narrowly tailored unless it conforms to traditional redistricting criteria, such as com- pactness and respect for political subdivisions. Because strict scrutiny applies only when "the legislature [has] subordinated traditional race- neutral districting principles * * * to racial con- siderations," Miller, 115 S. Ct. at 2488, however, acceptance of appellees' narrow tailoring argument would mean that any district subject to strict ---------------------------------------- Page Break ---------------------------------------- 11 scrutiny would automatically fail the narrow tai- loring prong of that inquiry. That result, would, be inconsistent with this, Court's recent admonition that strict scrutiny is not "strict in theory, but fatal in fact." Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2117 (1995). Appellees' argument that narrow tailoring requires adherence to traditional redis- tricting practices is also inconsistent with this Court's statement in Shaw, 113 S. Ct. at 2827, that a State is not constitutionally required to follow any particular set of traditional redistricting practices,. As we explain in our opening brief (Br. 36-37), a substantial departure from traditional redistricting practices may be evidence that a State has used race in drawing district lines more than is necessary to satisfy its compelling interests. In this case, how- ever, no such inference was justified. Although the State's remedial districts are irregular in shape, those irregularities were necessary to create dis- tricts that complied with Section 2 while simultan- eously serving the State's interest in protecting incumbents. See U.S. Br. 38. At bottom, appellees' argument reduces to the contention accepted by the district court that a State seeking to comply with Section 2 is constitutionally required to give greater weight to compactness than to protecting incumbents. See J.S. App. 91. That contention conflicts with this Court's repeated holdings that the State has the power to establish its own redistricting priorities. See U.S. Br. 40-41 (citing cases). A requirement that a State give greater priority to compactness than to protecting in- cumbents would also create a substantial disincentive to voluntary compliance with Section 2. It is un- realistic to expect that States will comply voluntarily ---------------------------------------- Page Break ---------------------------------------- 12 with Section 2 if they must sacrifice their interest in protecting incumbents in order to do so. Appellees make no attempt to reconcile their position with this Court's decisions holding that States may determine their own redistricting priorities or with the strong policy in favor of voluntary compliance with the law. b. Appellees also argue (Br. 64) that the challenged districts are not narrowly tailored because they do not "substantially include the particular minority voters whose constitutional and statutory rights they are designed to protect." That argument is without merit. The minority voters whose Section 2 rights the State has sought to protect are blacks in Dallas County, blacks in Harris County, and Hispanics in Harris County, and the State's remedial districts include a sufficient number of those voters to permit each group to have the potential to elect a candidate of its choice. It is true that not all members of those groups are in the State's remedial districts. But that is almost always true in vote dilution cases. See Gomez v. City of Watsonville, 863 F.2d 1407, 1414 (9th Cir. 1988), cert. denied, 489 U.S. 1080 (1989); McGhee v. Granville County, 860 F.2d 110, 118-119 (4th Cir. 1988); Gingles v. Edmisten, 590 F. Supp. 345, 380-384 (E.D.N.C. 1984) (three-judge court), aff'd in part, rev'd in part sub nom. Thornburg v. Gingles, 478 U.S. 30 (1986). Such a result is "a necessary concomitant of the inevitably rough-hewn, approximate redistricting remedy," in which some members of a politically cohesive minority group benefit directly by being included in a remedial district, while others benefit indirectly by having their distinctive interests taken into account by the person elected from the remedial district. McGhee, 860 F.2d at 118-119 & n.9. ---------------------------------------- Page Break ---------------------------------------- 13 Appellees contend (Br. 65-66) that the class of Section 2 victims is limited to those minority voters who reside in the area in which members of the minority group are most highly concentrated, and that the State's remedial districts do not sub- stantially include those voters. The victims of vote dilution, however, are not just those persons who reside in the area in which minority voters are most highly concentrated; the victims. include all members of the politically cohesive minority group. McGhee, 860 F.2d at 118-119 & n.9. In this case, the politically cohesive minority groups are blacks in Dallas County, blacks in Harris County, and Hispanics in Harris county. In any event, the State's remedial districts include substantial numbers of those persons who reside in the areas in which minority voters are me most highly concentrated. As appellees note (Br. 65), the minority community in Dallas County is most heavily con- centrated in South Dallas. That community forms the core of District 30. See J.A. 335. In fact, virtually all of the areas of high black population concentration (more than 70% black population) in South Dallas we in District 30. See ibid.; J.A. 150. The situation is similar in Harris County. There are three principal areas of high black population concentration (more than 70% black population) in Central Harris County. J.A. 151 Under the State's plan, two of those areas are almost entirely located within District 18, and the third area is divided between District 18 and District 25. ibid. In addition, virtually all areas of high Hispanic population concentration (more than 70% Hispanic population) in Central Harris County are located within District 29. J.A. 152. Thus, even under ---------------------------------------- Page Break ---------------------------------------- 14 appellees' proposed victim-specificity test, the State's remedial plan is narrowly tailored. 4. Finally, appellees argue (Br. 58-59) that the State had no interest independent of Section 2 in creating the minority opportunity districts at issue here. But as we explain in our opening brief (Br. 32- 35), the creation of those districts furthers the State's compelling interest in ameliorating the effects of polarized voting and preventing substantial underrepresentation of blacks in Dallas County and blacks and Hispanics in Harris County. Appellees seek to disparage the State's attempt to ameliorate the effects of polarized voting by labeling it an attempt to remedy societal discrimination. Br. 58-59. That characterization is incorrect. As we explain in our opening brief (Br. 34), the State could reasonably conclude that the severe racial bloc voting present in the State today is attributable, at least in part, to the State's long history of discrimination in voting. The State could also reasonably regard bloc voting as evidence of racial discrimination practiced by private parties. Ibid. In seeking to ameliorate the conse- quences of polarized voting, the State was there- fore attempting to remedy concrete discrimination and its continuing effects, not amorphous societal discrimination. ---------------------------------------- Page Break ---------------------------------------- 15 For the foregoing reasons and those stated in our opening brief, the judgment of the district court should be reversed or, alternatively, the judgment should be vacated and the case remanded for a decision under the correct legal standards. Respectfully submitted. DREW S. DAYS, III Solicitor General NOVEMBER 1995