William H. Rehnquist: We'll hear argument next in Number 94 923, Ruth Shaw v. James B. Hunt; Number 94 924, James Pope v. James B. Hunt. Mr. Everett, you may proceed.
Robinson O. Everett: Mr. Chief Justice, and may it please the Court-- I suppose I better do one thing at the outset to maintain the honor of North Carolina. There was a question about two of the districts in Texas being, I believe, the least compact in the country, and I have here perfect evidence that we have four of the least compact. Justice O'Connor will remember this map, because it was appended to her opinion in Shaw v. Reno, and the twelfth, I think... the snake... leads the country.
Sandra Day O'Connor: The Court's opinion, Mr. Everett.
Robinson O. Everett: I'm sorry, Your Honor.
Sandra Day O'Connor: The Court's opinion, not my opinion.
Robinson O. Everett: The Court's opinion, one which you authored. I apologize, Your Honor. But in any event, the Court became aware of the absence of compactness, which leads into another point. There was a discussion of the difference between narrow tailoring and broad tailoring. I think we have here the exhibit of no tailoring. And I'd like to make one other point, just to explain why we are here, and perhaps it reflects a rather naive understanding of the Constitution, of the Equal Protection Clause, but my impression has been that if there were two water fountains over there, one of which said African American, and another of which said, women, and another over here which said male, and said white, and if that in effect was here, with the signs, that I would be perfectly entitled to go to any one of those four fountains and drink the water. The water would be the same everywhere, but the Court nor other public body, no State, no Federal body could approve racial classifications. And the reason we're here is because this map reflects a redistricting plan which, in effect, is a racial classification. That's what this is about. That map says there are two black districts and there are ten white districts.
John Paul Stevens: Does it say that the people in those districts can drink at either water fountain? Can they vote both either Democratic or Republican, as they choose?
Robinson O. Everett: They can vote as they please, Justice Stevens, but on the other hand they are preconditioned in their behavior by the fact that these districts carry a message. They carry a message for the voters--
John Paul Stevens: The same message your signs carry.
Robinson O. Everett: --Your Honor?
John Paul Stevens: The same message that your signs carry, I guess, but they actually didn't inhibit.
Robinson O. Everett: Exactly.
John Paul Stevens: You pick the fountain you wanted to pick.
Robinson O. Everett: We are saying that these, though, carry a message, and the signs would be impermissible. This Court did that. It had these labels... I would certainly be entitled to make a motion and get an injunction and have those signs taken down. We would maintain by the same token--
William H. Rehnquist: I don't know who you'd get it from. [Laughter]
Robinson O. Everett: --I would hope at least we could get a majority, but in any event, it would seem to me what we are saying is these signs, these labels should be removed. Now, in order that there's no question about the status and the standing of the plaintiffs and the plaintiff intervenors, I should note that according to the Court's determination the plaintiffs and the plaintiff intervenors have established... this is on page 110a... have established that they are registered to vote in North Carolina congressional elections and that the challenged redistricting plan assigns them to vote in particular electoral districts, at least in part because of their race. Which is to say that Professor Shimm is assigned to the 12th District at least in part because of the racial determination. He is a white fill a person, and on the other hand there are three of us who are plaintiffs who are assigned to the 2nd District because of our race. We... because our district was bleached. Now, interestingly enough, and Justice Scalia called attention in the Texas case to an example of what we might refer to as Orwellian doublespeak. The minority opportunity district I think was the phrase.
William H. Rehnquist: Mr. Everett, there is some difference, isn't there, with respect to the standing of the plaintiffs in this case with respect to one district and the other?
Robinson O. Everett: We would maintain, Your Honor, that due to the ripple effect all these plaintiffs have standing as to all the districts.
William H. Rehnquist: Well, but supposing we don't accept the ripple effect, there is some difference, isn't there?
Robinson O. Everett: Oh, Professor Shimm and Mrs. Shaw are in the 12th District. The rest of us are in different districts. None of us is in the 1st District, but the 1st District was constructed by taking the... what would have been the 2nd District and playing around with it and changing the boundaries, so that our position would be that all those... and this is really the rationale, I think, of the court below, that all of us were affected because of the seamless web--
William H. Rehnquist: Suppose-- --What about our decision in Hays? I mean, couldn't the plaintiffs there have made the same argument about Louisiana, that it's a seamless web, and we didn't accept that.
Robinson O. Everett: --I don't believe they made it, as I recall... I was here at the argument... and I don't think it was articulated in that particular fashion, but our position would be this, Your Honor, as a practical matter. The 12th District, because of its inner penetration, is essential to the plan. If you knock out the 12th District there is no plan, and as a consequence, and since Professor Shimm and Mrs. Shaw clearly have standing, it really doesn't make much difference. The question is before you, is this plan a violation of the Equal Protection--
Antonin Scalia: You're saying that a person who has a right to challenge one district by reason of residence in that district has a right to challenge the entire plan.
Robinson O. Everett: --I would say, Your Honor--
Antonin Scalia: That's a different argument from the ripple effect.
Robinson O. Everett: --It's... I would say that in this particular situation, given the inner penetration of the plan, that would be true. Now--
Antonin Scalia: Including the aspects of the plan that you claim are invalid with respect to other districts.
Robinson O. Everett: --We would think across the board in this situation, and we would note this, Your Honor, that the... well, I will admit, Cherokee County, over here, up into Tennessee, I'm not really saying that I'd have much standing perhaps to challenge that, but as a practical matter, everything in the middle and the eastern part of North Carolina is so tied together as a practical matter it is one plan. It is like the unitary school system in the Hays case, which was promulgated from one source. It's a unitary plan, and we would maintain we have standing. One thing I would like to call to the Court's attention, and we stress it in our brief because we think it's important. That is, what was said 2 1/2 years ago when we were here, and what's happened in between. When I argued the case 2 1/2 years ago the counsel for the State appellee, and this is pointed out in our brief on page 4, said this case is about the legal significance of two facts. First, the North Carolina General Assembly intentionally created two majority minority congressional districts. Second, the General Assembly did so for the purpose of complying with section 5 of the Voting Rights Act and of securing preclearance of its congressional reapportionment plan from the Attorney General of the United States. In response to a question from the Court, the same counsel stated... he's not here this time. There's a different counsel for the State, but he presumably spoke with authority... there's no dispute here over what the State's purpose is. There's a dispute over how to characterize it legally, but we're not in disagreement about what the State legislature was trying to do. Then again, and this is quoted on page 27 of our brief in the footnote, counsel for the State defendant stated to the Court the determining factor in this case is that North Carolina is subject to section 5 preclearance, and then later, section 2 may, depending upon the particular demographics and the situation of the State, require majority minority districting, but once again, that's not this case. So we were here 2 1/2 years ago thinking the case had to do with whether or not section 5 was involved, and the State put forth what we characterized as the Nuremberg defense. The Department of Justice made us do it. The Civil Rights Division made us do it. They wouldn't give us preclearance. And I was also here during the argument when the Solicitor General was asked back in April this year about the policy of the Department of Justice, and it seems very clear from the findings made in the Hays case, the original Hays case, from the findings in the Georgia case which you're well familiar with, from everything about it, that just as was said here to this very Court 2 1/2 years ago and just as was admitted in the defendant's answer, they did it in order to get preclearance. What did they do? They enacted this constitutional monstrosity, which replaced another constitutional monstrosity but a less aggravated monstrosity. They did it in order to get preclearance. So when we left here, or when we got the decision, actually, in summer of 1993, and we read about the gerrymander, what the Court said, racial gerrymander, strict scrutiny, we thought it was a fairly simple case. Go back... can we prove there's a racial gerrymander? Of course we can. This map almost speaks for itself. Everything else spoke for itself. The record, the submission in Chapter 7 says the overriding purpose of the State, the State of North Carolina, is to create these districts and to obtain preclearance. How could it be clearer? So... but there are some very ingenious counsel on the other side, and then we learned that it wasn't really a racial gerrymander, oh, no, and it wasn't just section 2, oh, no, and it wasn't... I mean, it wasn't just section 5, pardon me. It was also section 2, and it was also remedying past discrimination. Very innovative, and moreover, we didn't have... none of us had standing. Everything, we had all of it. The State appropriated half a million dollars to put up this defense. Various people came in to battle us along the way.
David H. Souter: Mr. Everett, may I ask you this question? Do you find something legally or constitutionally inconsistent with the position the last time around, or at least the assumption the last time around that the reason for the configuration was to obtain section 5 preclearance and the reason found here... strike the word reason... and the fact found here that in fact the configuration was a means to comply with section 2? Are those two inconsistent?
Robinson O. Everett: Your Honor, I used to teach evidence a couple of times. We have prior inconsistent statements that are admissible because they intend to impeach. If that isn't a--
David H. Souter: I'm asking you whether they're inconsistent.
Robinson O. Everett: --Well, I'd say--
David H. Souter: One says the motive... the motive the first time was to obtain section 5 preclearance, period. Assume that. I'm assuming that.
Robinson O. Everett: --That's the only question, they say.
David H. Souter: And the finding now is that that configuration was necessary and hence justifiable to avoid a section 2 violation. Are those two propositions inconsistent legally?
Robinson O. Everett: They are in this context, Justice Souter. They are inconsistent when it's a question of what the North Carolina General Assembly intended in January--
David H. Souter: Well, that may be, but that wasn't my question. My question wasn't whether they had two different intents. My question was, if we assume that the intent was in fact to get a section 5 preclearance, and we know from Shaw that that is not adequate, is there anything inconsistent with saying it is nonetheless justifiable now, because in fact it was necessary to avoid a section 2 violation and hence--
Robinson O. Everett: --Your Honor, let me--
David H. Souter: --can be upheld. Are those two propositions inconsistent?
Robinson O. Everett: --Let me say in this context they are very inconsistent.
Antonin Scalia: No, they're not. I mean, the one goes to intent and the other goes to the pure fact of whether it was necessary, not whether it was intended.
Robinson O. Everett: Well--
Antonin Scalia: So they're not inconsistent.
Robinson O. Everett: --If--
Antonin Scalia: If they can prove that it was indeed necessary, that there's no other thing you could have done... I think that's a hard thing to prove, but... that no other configuration could possibly have been adopted which would comply with section 2, I suppose if they can prove that, it's certainly not inconsistent--
Robinson O. Everett: --Justice Scalia--
Antonin Scalia: --with the fact that they intended to do section 5.
Robinson O. Everett: --Justice Scalia, if they didn't intend to do it, they didn't intend to do it, they can't justify it. In other words, as I understand it--
Antonin Scalia: That's a different argument, though. But you're... so you're saying that the only justification at this stage is the justification of their original intent, and we've now... this Court has found that that intent, i.e. conform to... get section 5 preclearance is inadequate, so that's the end of the case. Is that your position?
Robinson O. Everett: --That is part of our position, Your Honor. We think that is--
David H. Souter: Well, let me must pursue that for a moment. Assume... I'm not asking you to assume it's true in this case, but just assume that it is, in fact, reasonably necessary to conform to section 2, are we supposed to ignore, or is a three judge district court supposed to ignore that fact?
Robinson O. Everett: --Your Honor, if it is a matter of justifying something under strict scrutiny something that is a racial gerrymander, and if the legislature that adopted the racial gerrymander didn't even think about it, then we would maintain that in order to have the integrity of equal protection and to protect the constitutional rights of us voters, yes, that should be disregarded.
David H. Souter: Okay. The case goes back. The court says, unconstitutional. Go back and come up with a new plan. They go back, and they conclude, we'll assume again not necessarily in this case, but we'll assume in the hypo that it is necessary to avoid a section 2 violation. So they redraw the map, and it looks like the last map. New case. May the section 2 violation be considered by the three judge... may the claim that it is reasonably necessary to avoid a section 2 violation be considered by the three judge court?
Robinson O. Everett: Your Honor, I would not say they are estopped from considering it, or anything of that sort. What I would suggest is, on the facts of this case, since they said section 5--
David H. Souter: No, but I want you to answer my hypo.
Robinson O. Everett: --Fine.
David H. Souter: And I'm not suggesting to you that my hypo is this case--
Robinson O. Everett: Sure.
David H. Souter: --and I'm not asking you to concede that, but on my hypo, may the three judge district court consider the defense, if you want to put it that way, that this is reasonably necessary to avoid a section 2 violation?
Robinson O. Everett: Two aspects to that. In the first place, they'd have to be sure there is no fruits of the poisonous tree, there is no carryover from the alleged--
David H. Souter: That goes to the, sort of to the facts of the particular case. May they, just as a general proposition, consider it as a defensive matter that it is reasonably necessary to avoid a section 2 violation?
Robinson O. Everett: --Your Honor, we're going to take an outlandish position. We don't believe that under section 2 that's enough to protect it from constitutional--
David H. Souter: Maybe it isn't, but maybe... and that then may lead you to claim that section 2 is unconstitutional, or whatever, but is it relevant as a defense? May the court consider it?
Robinson O. Everett: --We would maintain that, given the purposes of section 2 as we understand it, that it would not be permissible to use it as a vehicle for imposing two majority minority districts in a--
David H. Souter: That wasn't my question. May the court consider it as an appropriate defense?
Robinson O. Everett: --We would say no, Your Honor.
David H. Souter: So are you saying, then, that a... that the object to avoid a section 2 violation as a matter of law may not be considered as a justification under strict scrutiny?
Robinson O. Everett: We do not believe, Your Honor, that it constitutes a compelling interest, given the purposes of section 2 and its process orientation, and by the way, there's an excellent discussion of that by Professor Blumstein in his recent Rutgers Law Review paper.
David H. Souter: Is the reason for your answer essentially that section 2 is unconstitutional?
Robinson O. Everett: Our position would be that section 2 as properly construed and narrowed is probably constitutional, but that certainly to use it as a vehicle for compelling majority minority districts is unconstitutional.
Ruth Bader Ginsburg: How about a voluntary majority minority district? I think you said you were about to say something some people would consider outlandish. Are you saying that, that if the avowed purpose is to create a majority minority district no matter how compact it is, if people are honest about that's what they're trying to accomplish, that that's unconstitutional?
Robinson O. Everett: Your Honor, we say this. If it is a label of race, they say we want a black district, we want a Hispanic district, and that's the purpose, and that's the label, then that in our view at least, right or wrong, is a violation of the Equal Protection... now, obviously--
Ruth Bader Ginsburg: Am I right that there are many congressional districts, many State districts across the country where people said exactly that, we want a majority minority district, so on your reasoning, a good deal of the redistricting was unconstitutional.
Robinson O. Everett: --On our reasoning a good deal of the redistricting that followed the 1990 census was unconstitutional because it is result oriented in a manner of labeling just like labeling the water fountains in my example.
Sandra Day O'Connor: Well, that... would you take that position even in circumstances in which to accomplish the goal, the legislature did not resort to drawing the lines on the basis of race, but rather on the basis of voter registration?
Robinson O. Everett: If it's a matter of, say, Democrat Republican, that's certainly... if it--
Sandra Day O'Connor: Their goal was admittedly to get a majority minority district, but to achieve it they put in the computer program data about voter registration, Democrat, Republican, Independent, and they drew the districts on that basis.
Robinson O. Everett: --If the goal is defined by race, then our position is it's impermissible, as, for example, in the case--
Sandra Day O'Connor: You say that cannot be done even if the boundaries are drawn on the basis of voter registration?
Robinson O. Everett: --If it's voter... I'm not sure I understand exactly, Your Honor, but if--
Sandra Day O'Connor: You get a computer program to draw the boundaries, and you plug into the computer how the voters are registered, Democrat, Republican, independent, Dixiecrat, whatever it might be, and the lines are drawn on that basis.
Robinson O. Everett: --There's no race there, as I understand it.
Sandra Day O'Connor: The goal was to create a majority minority district, but it is accomplished by using nonracial data.
Robinson O. Everett: Your Honor, we think the goal is impermissible. Let me analogize this. I can see the... well, if you want to have Democrats control or Republicans, or whatever it is, look at the registration of those, you may know that there's a heavy Democratic registration, say in North Carolina where 95 percent of the African Americans are registered as black. You may know that where there's a 95... a heavy Democratic registration there probably is a very substantial African American population. So what? But what I am concerned about, and perhaps this is because of my reading or misreading of the peremptory challenges cases, my understanding is that if I look at a juror, I have a peremptory challenge, and I say, that juror is black, therefore I don't want him in this particular case, or that juror is a woman and I don't want her in that particular case, and I use a stereotype, and I use a classification, that is wrong. If, on the other hand, as in the Hernandez case where you were dealing, as I recall, with peremptory challenges, I say, this Hispanic may be interpreting for himself or herself the testimony being given, rather than going through an interpreter, then I can challenge him off. It's... as we view it, and we perhaps take Hirabayashi and the later cases too seriously, but we really take it very seriously that racial classifications are odious and are subject to stricture.
Stephen G. Breyer: So then you would say the same principle applies to every, whether it's a city council, whether it's any of the hundreds of thousands of elections that if people draw boundaries to a significant extent on the basis of race, I take it, of religion, of ethnic background, of sex, of anything of that nature, that that then will come into Federal court and they will then look and see if significant boundaries in this local city council race, or whatever, a significant number of those boundaries was drawn with religion in mind or ethnicity. Is that actually what you're thinking?
Robinson O. Everett: Your Honor, that may sound extreme. If I take that position--
Stephen G. Breyer: No, no, that maybe preferable to--
Robinson O. Everett: --Well--
Stephen G. Breyer: --saying that you can't do this in the case of a black effort but you can do it in the case of any other effort. I don't see how you can make a distinction between--
Robinson O. Everett: --Well, we--
Stephen G. Breyer: --I agree with you on that failure and difficulty of distinguishing, if that is your position.
Robinson O. Everett: --Well, Justice Breyer, we do view race as having a special significance.
Stephen G. Breyer: You mean, you could in fact say they cannot gerrymander or draw boundaries on the basis of race, but you can draw... if the person is... to benefit African Americans, but you can do exactly the same thing for the purpose of benefiting the Jews or the Catholics or any other group in society?
Robinson O. Everett: No. We would say that if there is, let's say, a Jewish district, and if Professor Shimm, who is Jewish, is put there because he is Jewish--
Stephen G. Breyer: Well, I mean, are you distinguishing whether it's a whole district, or part of a district, or what is... I'm trying... what are you distinguishing?
Robinson O. Everett: --Our distinction is in terms of purpose, very much like the Batson situation, where, if there is a purpose to do it on a racial basis or an ethnic basis or a religious basis or a gender basis, then that is impermissible. Now, hopefully... hopefully, when this Court makes that message loud and clear that this is impermissible unless it can survive strict scrutiny, hopefully people will get the message and it's not going to happen in that city council, just like now you don't have problems about equipopulousness to the same extent.
William H. Rehnquist: Classification on the basis of gender has not been subject to strict scrutiny in the past. It's been subject to a kind of intermediate or quasi strict scrutiny.
Robinson O. Everett: Your Honor, Mr. Chief Justice, I leaped over in my enthusiasm into another area of gender, and that is certainly a different--
John Paul Stevens: May I ask you, Mr. Everett, supposing you have a case in which it's perfectly clear that the legislature decided to create two majority minority districts, is there any way in the world in which the plan could survive strict scrutiny? What factors would enable it ever to survive?
Robinson O. Everett: --Well, Your Honor, we would think that there would have to be so many circumstances totally different from those in North Carolina--
John Paul Stevens: No, but just hypothetically, what are the kind of factors that would enable... is there any set of facts... your argument is pretty firm, it seems to me--
Robinson O. Everett: --Well--
John Paul Stevens: --that if we know they wanted two minority majority districts, that's the end of the ball game.
Robinson O. Everett: --Well, one thing that would be very important is the sort of consideration that was outlined of totality of circumstances in Johnson--
Antonin Scalia: Mr. Everett, I haven't understood everything you've been saying... if your answer to that isn't a clear yes, I don't know what you've been saying.
Robinson O. Everett: --I--
Antonin Scalia: I thought you've been saying the motivation cannot be racial.
Robinson O. Everett: --That's it.
Antonin Scalia: And if I set out to create two majority minority districts--
Robinson O. Everett: That's exactly--
Antonin Scalia: --that's the end of it, right?
Robinson O. Everett: --I think--
John Paul Stevens: There is no way to get by the strict scrutiny hurdle if that original intent is established, and I don't think there's much doubt about it in this case. I don't think you need all this funny map. They wanted to comply with what they thought was necessary to satisfy the Department of Justice, and they created two majority minority districts. Why do we have to have a trial? That's really your position, isn't it?
Robinson O. Everett: --Yes. Our position is that--
John Paul Stevens: Yes.
Robinson O. Everett: --race is impermissible. You can't use it for a purpose... we cannot really think of any situation where it could be--
John Paul Stevens: And really the shape merely confirms the other evidence of intent.
Robinson O. Everett: --The evidence--
Sandra Day O'Connor: So you take the position that if strict scrutiny is applied, it's fatal in fact, necessarily, that nothing survives strict scrutiny.
Robinson O. Everett: --As to majority minority districts in almost anything, any situation we can conceive of, if they are created for a racial purpose per se, we believe they cannot survive.
Sandra Day O'Connor: I had-- --What about a case where... I'm sorry. I had thought that we had indicated that it is possible to survive strict scrutiny if there is a compelling State interest and if the plan is narrowly tailored. I had thought that's what this Court had said, but you're arguing for something else, it sounds like.
Robinson O. Everett: Well, Your Honor, I suppose I'm descending from the theoretical to the practical in that we have been unable to conceive of anything, at least in our limited experience, which--
Sandra Day O'Connor: Compliance with section 2 could not be a compelling State interest, or it could?
Robinson O. Everett: --We would consider that it could not be, for the creation of majority minority districts.
Anthony M. Kennedy: Do you have to take that position to prevail in this case?
Robinson O. Everett: Absolutely not.
Anthony M. Kennedy: What is you secondary position with respect to this case?
Robinson O. Everett: Our secondary position is that it is clear there was not a reevaluation of section 2, that the section 5 denial of preclearance tainted everything, that just as the State represented when it came up here the first time, it was a matter of fulfilling the mandate of the Justice Department just as it was in Miller, and therefore this should fall, just as the Georgia redistricting fell. Moreover, there was no totality of circumstances analysis. There is no ability to satisfy the Gingles preconditions to whatever extent they still are preconditions. There is an actual, very overt, mathematically demonstrable error in the opinion of the court that there can be created two geographically compact majority minority districts. You can tell from this map and from the maps that show the concentrations of black population that it is simply impossible. The court completely misconstrued the numerical facts, including one of the tables, and when you take all of that together, the section 2 compliance argument is an afterthought.
Stephen G. Breyer: I have a map here that says plan NEC Shaw II type TGB, Shaw II, map 2--
Robinson O. Everett: Oh, Your Honor--
Stephen G. Breyer: --Isn't that the compact one? Do you know what I'm talking about?
Robinson O. Everett: --I know what you're talking about.
Stephen G. Breyer: Why wasn't that the compact, with two?
Robinson O. Everett: Well, Your Honor, majority black is 50 percent. The very table that was relied on by the majority below shows 44 percent. Forty four percent is less than 50 percent, and therefore as a matter of mathematically demonstrable fact, the court was wrong. They also refer to other examples of geographically compact districts. Those other districts contain the equivalent of section 12. Now, if anyone here... some things you can see, and I'm sure all of you all have 20/20 vision jurisdically and otherwise. You can see that that is not geographically compact. So they create new concepts, functional... I'm sorry, Your Honor.
William H. Rehnquist: Thank you, Mr. Everett. Mr. Farr, we'll... I think we'll recess and resume at 1:00 p.m.-- Mr. Farr, we'll hear from you.
Thomas A. Farr: Mr. Chief Justice, and may it please the Court-- Speaking for the plaintiff intervenors, I would like to state what we think is at issue in this case, and what is not at issue. We do not believe that the constitutionality of the Voting Rights Act is at issue. We believe that it is constitutional. Nor do we think that whether compliance with section 2 might, under the right case, serve some compelling governmental interest, that is not an issue in this case. We think under the right case it may be a compelling governmental interest, so you create a district that would satisfy section 2.
William H. Rehnquist: If it can be a compelling State interest in some cases, why isn't it in this?
Thomas A. Farr: It is not a compelling State interest in this case, Your Honor, for two reasons. First, there is no evidence in this record that would show that the district adopted... met the Gingles preconditions. There would be no plaintiff, I think, in the United States would walk into a district court with this map and say these are two geographically compact districts that entitle us to remedial relief under section 2 of the Voting Rights Act. The other reason, Your Honor, why that is not an issue in this case is because no one in the North Carolina General Assembly believed that they were creating these districts to remedy violations under section 2 of the Voting Rights Act, and it's very clear that what North Carolina believed it was doing, because they said so, they made this statement in their submission in support of Chapter 7 to the Justice Department pursuant to section 5, was that they were creating these districts to respond to the dictates of the Justice Department for--
John Paul Stevens: May I go back to your first reason? Why does that map bear on the question of whether it was possible to create a compact district, majority minority compact district? That map doesn't tell us anything about where people live.
Thomas A. Farr: --Your Honor, I think that there's evidence in this case from which it might be concluded that a majority black district could be created in northeastern North Carolina--
John Paul Stevens: Right.
Thomas A. Farr: --and that a majority minority district could be created running from Charlotte to the southeastern part of the State. There's no evidence in this case that two majority black districts that are reasonably geographically compact could be created in this case. It's not been presented by anyone. Now, we believe, Your Honor, aside from the fact that the State did not comply with what is stated in Croson and Wygant, that they have to have substantial racism evidence at the time that they adopt a racial based remedy, assuming that they had done that, Your Honor. The only defense that they have in this case is if the Court adopts the notion that you may place a remedial district somewhere else in North Carolina besides the part of the State where the violation has been proven, and we think that's a very novel concept under every other area of law, and it ought to be a novel concept under section 2 of the Voting Rights Act.
Antonin Scalia: Well, would you-- --Why-- --No, please. I don't know why that would be. I mean, if you buy the proposition of racial entitlement, that is, it doesn't matter whether a particular black man has been discriminated against, that the object is the race as a whole has to be made good, why wouldn't that follow? It doesn't really matter what part of the State you're not properly creating the black district in, so long as you create a black district somewhere.
Thomas A. Farr: Your Honor--
Antonin Scalia: It's sort of a racial entitlement theory. It has nothing to do with particular individuals who are being disadvantaged.
Thomas A. Farr: --Your Honor, we think that this right under the Voting Rights Act is not a right that is enjoyed by any minority in the State of North Carolina. It is the right to be free from vote dilution, and I believe that Justice O'Connor's concurring opinion in the Gingles case makes it very clear that these cases are very district specific, that you've got to prove the Gingles conditions in the district in which you're trying to show the violation. And if I might explain a little bit what happened in North Carolina, there is an argument that you could make a reasonably compact majority minority district running from Charlotte to the southeastern part of the State. This was not done for incumbency protection reasons. That's undisputed that that's why this was not adopted. It's the only district that the Justice Department pointed out in its objection letter, and again, as stated earlier, there's no evidence... Justice certainly did not suggest a majority black district. They suggested a majority minority district. In running this district up I 85, the district took in the black population in Charlotte, which constituted approximately a third of the total minority population that would have been in existence if we had adopted a majority minority district.
Stephen G. Breyer: The reason, I take it, is that the specific argument would be that section 2 requires the creation of two districts in North Carolina because, just as you pointed out, one could be done in that part of the State and the other in the other part of the State, and the only reason that they're in a different place is for incumbency protection reasons, and that latter reason has nothing to do with race, and if you say that you can't do that, then you're saying that you can't do it when black districts are involved but you could do it when white districts are involved, and so the latter proposition is an impossible one to maintain.
Thomas A. Farr: Your Honor, we--
Stephen G. Breyer: Legally.
Thomas A. Farr: --We would--
Stephen G. Breyer: And so I mean, that's the specific argument, so I'd appreciate your addressing that.
Thomas A. Farr: --Well, we respectfully disagree with Your Honor's position on that.
Stephen G. Breyer: I'm not taking that as a position. I'm simply asking you to address it because I think that's the specific argument.
Thomas A. Farr: Your Honor, we don't think that there's evidence, nor was there ever any intention to say that the State legislature should look at the State of North Carolina and conclude that minorities are entitled to proportional representation in the State of North Carolina. We believe what--
Stephen G. Breyer: So the first possibility is, it isn't true that they'd be in violation of the Voting Rights Act. That would be, I guess, an issue. But if it turns out that they would have been, is there anything wrong with their having drawn the boundaries solely for incumbency protection, which--
Thomas A. Farr: --Yes, Your Honor.
Stephen G. Breyer: --And what's that?
Thomas A. Farr: We believe, Your Honor, that that would fail the narrow tailoring requirement of strict scrutiny, and specifically, Your Honor, it's these people in this part of North Carolina that had their votes diluted. They're the ones that have been subject to an injury.
Antonin Scalia: But I thought the point would be that they would not be drawing it solely on the basis of incumbency protection. They'd be... still be drawing the boundaries on the basis of race, although in order to protect incumbents.
Thomas A. Farr: That's very true, Your Honor.
Antonin Scalia: But it would still be racial boundary drawing, and your position is that's okay when you're doing it in order to comply with section 2, but it's not okay when you're doing it to protect incumbents, I suppose.
Thomas A. Farr: Yes, I don't think incumbency protection is a compelling governmental interest, Your Honor, and in fact--
David H. Souter: Well, it may not be a... and no, I don't think anybody is claiming that it's a compelling governmental interest, but it is a relevant consideration, as I understand it, under Miller, in determining the extent to which race predominates, because one of the things you ask, the principal question you asked, I guess, is, has race subordinated traditional districting principles? Now, if one districting principle is incumbency protection, if that as a matter of historical fact is true, that that has been an object pursued over the years, and if that can be pursued, let's say with political data as opposed to racial data which may or may not be a good surrogate for political data, if it's pursued with political data alone, then do you not concede that the boundary can vary from the compact boundary that would satisfy Gingles without flunking the narrow tailoring test? Don't you concede that?
Thomas A. Farr: --No, Your Honor, I don't concede that.
David H. Souter: Then tell me why not.
Thomas A. Farr: Well, if I understood your question, you were saying, and Justice Scalia, we believe it's a very difficult case to prove a section 2 violation, and I hope I have a chance to explain that before I sit down, but Justice Souter, we again believe that the remedy must go to the people who have been injured, and if--
David H. Souter: No, but you are saying not that the remedy must go to the people who have been injured, but that the remedy must go to all and only the people injured, and no other consideration may play a role--
Thomas A. Farr: --I think--
David H. Souter: --and if you are saying that, I think, you are asking the Court to depart at least in one respect from Miller, because Miller says a consideration as to whether race has subordinated, whether race is predominant, is, has race subordinated traditional districting principles, and if a traditional districting principle is incumbency protection, you are saying, well, you've got to modify Miller to the extent that incumbency protection will never be cognizable here, so I think you're asking for a change in Miller.
Thomas A. Farr: --Well, I don't believe we are, Your Honor.
David H. Souter: Well, why not? If... and my assumption is incumbency protection can be shown historically to have been a districting objective. It's one of the things that's considered. If that is true, that historically that has been an objective pursued, and you're now saying no, you can't pursue it--
Thomas A. Farr: Yes, Your Honor.
David H. Souter: --because that would modify the boundary--
Thomas A. Farr: Yes.
David H. Souter: --then to that extent you're modifying Miller.
Thomas A. Farr: Well, Your Honor, first you're assuming that incumbency protection is the type of traditional districting principle that the Court was referring to in the Miller case.
Ruth Bader Ginsburg: Well, is it legitimate or not? Well, why isn't it?
Thomas A. Farr: Your Honor, I think there's a great distinction, because when you're talking about political subdivisions or county lines, you're talking about neutral criteria, and I believe that the Court discussed those issues as a frame of reference to show in a case involving circumstantial evidence whether or not you could prove the intent element of the Miller claim. With incumbency protection that is a far more subjective factor, and Justice Souter, drawing a majority minority district has to be done for a compelling governmental interest, and we would suggest that doing it to protect an incumbent is not compelling. Doing it to possibly comply with a section 2 violation is, and if you are doing that, you must draw the district where the section 2 violation exists.
William H. Rehnquist: Thank you, Mr. Farr. Mr. Speas, we'll hear from you.
Edwin M. Speas, Jr.: Mr. Chief Justice, and may it please the Court-- This matter first came to this Court on the granting of defendant's Rule 12(b)(6) motion, and all of the facts of the complaint, of course, were presumed to be true. The matter was remanded to court for trial, to the district court for trial, and at the trial, extensive evidence was taken by the court. Among that evidence were specific statements by legislators and the drafters of the map that they intended to draw the 12th District as an urban district. Demographers told us without any question the 12th District is an urban district. It is the most urban district created in North Carolina. Historians told us also that the 12th District is located within the Piedmont Urban Crescent.
William H. Rehnquist: What color is the 12th District on the map?
Edwin M. Speas, Jr.: The 12th district is orange, Your Honor.
William H. Rehnquist: Oh, okay.
Edwin M. Speas, Jr.: It is located entirely within the 10 counties that make up the Piedmont Urban Crescent, an area that the historians tell us has historic integrity. The historians also... excuse me. The demographers also told us that this area is laced together by interstate highways, that the district is accessible both for voters and their representatives. All of these factors combined to lead the district court to conclude that this district and all districts provided fair and effective representation for North Carolina citizens, and we think that's very important in this case, because, as this Court has said, the ultimate purpose of redistricting is to provide fair and effective representation for all of North Carolina's citizens, both black and white.
Antonin Scalia: That's what a district court is supposed to sit in judgment of, of whether a particular redistricting scheme provides fair and effective representation?
Edwin M. Speas, Jr.: It would seem to us, Your Honor, that those are very pertinent issues for... the issues for the Court to consider in regard to the issues in front of you. We think--
Antonin Scalia: I mean, it's a nice thing, who could be against it, but I wouldn't want to have to... this is the kind of thing that judges and lawyers are good at doing?
Edwin M. Speas, Jr.: --In this case, the evidence was presented that the district does provide fair and effective representation, and the district court found that it does, in fact, do that, so we think it is important, Your Honor.
William H. Rehnquist: Is that a test that every redistricting plan and every State must meet, that the particular district provides fair and effective representation?
Edwin M. Speas, Jr.: No, Your Honor, but we think in this case that the issue of whether the district provides fair and effective representation is relevant to the issue of standing, is relevant to the issue of whether race was the predominant motive... if race was the predominant motive, you would assume that the district might not provide fair and effective representation for white citizens, and in fact--
Antonin Scalia: Maybe so, maybe not. I'm not sure there's any correlation between the two. I... you know, I suppose if we wanted to go to a system in which everybody is represented by his race, I guess that might be fair and effective representation. I--
Edwin M. Speas, Jr.: --But it was fair and effective--
Antonin Scalia: --Where do you get this test? I mean, I don't see it in any of our cases.
Edwin M. Speas, Jr.: --We get it, Your Honor, from your statements that the purpose, the ultimate purpose, the fundamental purpose of redistricting is to provide fair and effective representation.
Antonin Scalia: Well, of course it is, and there are certain subrules that we follow and apply to determine whether that's been done, but we just don't sit in the abstract and decide whether there's fair and effective representation.
Edwin M. Speas, Jr.: This wasn't done in the abstract, Your Honor. Specific evidence was presented that it does provide fair and effective representation.
Sandra Day O'Connor: But I thought it was remanded to apply strict scrutiny, and I'm not sure how that's relevant. I thought the court below had to decide whether there was a compelling State interest and whether it was narrowly tailored, and I'm surprised you're not talking about that.
Edwin M. Speas, Jr.: Well, certainly we do believe that this particular plan meets strict scrutiny. We also believe that the district court applied a too lenient test to determine whether this was a racial gerrymander subject to strict scrutiny in the first instance.
Anthony M. Kennedy: What was the compelling interest that the district court found? Was it to comply with the requirements of section 2?
Edwin M. Speas, Jr.: With section 2 and section 5, Your Honor.
Anthony M. Kennedy: All right. Now, with respect to section 2, in District 12, I take it that the westernmost part is Gaston County, am I correct in that?
Edwin M. Speas, Jr.: That's correct, Your Honor.
Anthony M. Kennedy: Before this district was drawn, would the black voters in western... that western part in Gaston County have had standing to bring a section 2 vote dilution claim?
Edwin M. Speas, Jr.: Yes, I believe a black voter would have had standing to bring--
Anthony M. Kennedy: Oh, you think that there was... that they were then in a district which was compact--
Edwin M. Speas, Jr.: --Oh, I'm sorry.
Anthony M. Kennedy: --and contiguous under the Gingles test?
Edwin M. Speas, Jr.: I believe that a black voter in North Carolina would have had standing--
Anthony M. Kennedy: No, no, I'm talking about--
Edwin M. Speas, Jr.: --to bring a section 2 claim asserting a violation of section 2.
Anthony M. Kennedy: --No, no, based on... based on the voters in Gaston County being unrepresented in a black district. How would the Gingles requirements comply with, with reference to those voters, just assuming initially a section 2 case?
Edwin M. Speas, Jr.: The question under a section 2 case, would there been, have been the potential for the State of North Carolina to created, to have created a geographically compact district to... that would have--
Anthony M. Kennedy: But they necessarily fail that, don't they?
Edwin M. Speas, Jr.: --No, Your Honor. We think that the issue for the State is whether such a district can be drawn. If it is established, and there is strong evidence for believing that a district can be drawn, then principles of federalism and the discretion the States must have in this area give to the States discretion as to where they will place that district--
Anthony M. Kennedy: So--
Edwin M. Speas, Jr.: --so long as it provides fair and effective representation.
Anthony M. Kennedy: --So then the remedy has nothing to do with the initial violation. That's a very strange doctrine of law.
Edwin M. Speas, Jr.: Well, Your Honor, we believe that in this case the evidence is, and certainly the district court found, that there was racially polarized voting within this particular area, or these areas where these districts were created, so it is our position that there is a fit between these particular districts and the section 2--
Anthony M. Kennedy: You must also find, under Gingles at least, that the other factors are present.
Edwin M. Speas, Jr.: --Yes.
Anthony M. Kennedy: And you can't just talk about racial polarizing. You have to talk about compact and cohesive districts.
Edwin M. Speas, Jr.: And certainly there's no question, it's unrefuted in this case, that black citizens vote together cohesively.
Antonin Scalia: Two districts... is there not just unrefuted evidence, is there any evidence that two compact black districts, black majority, not minority majority, but black majority districts could have been created?
Edwin M. Speas, Jr.: Many different districts were presented to the North Carolina General Assembly. Some were here, in the southeast, where there's some concentration of black citizens, some were here, in the northeast, where there is a concentration of black citizens--
Antonin Scalia: Could two--
Edwin M. Speas, Jr.: --and some were here.
Antonin Scalia: --Could two have been created? Is there testimony and evidence, and I'd like you to cite it to me, because your opponent contends not, that you could have had a justification for creating one majority black and one majority minority, but that there is no justification on the Gingles standards, even if you're not going to use the Gingles standards in the districts where you apply them, for two black majority districts. Now, what would you cite me as refuting that?
Edwin M. Speas, Jr.: I would cite you Shaw I, Shaw I, II, and III, to begin with. That is a district where, if you add blacks and Indians, you do have a majority minority district. I would cite to you--
Antonin Scalia: I want two black majority, not majority minority. I want two majority black districts, compact.
Edwin M. Speas, Jr.: --I would cite to you the plan prepared and presented by Representative Larry Justus, which was labeled Compact 2, which I believe creates, and was presented in January of 1992 to the General Assembly, which is contained... a map of which is contained in the maps lodged with the court, and I will obtain those. I would cite to you a district running from Winston Salem to Halifax County that was before the General Assembly that was a majority black district, and that was described in the State's response to the Department of Justice as a reasonably compact--
Antonin Scalia: And these plans had two black districts. I mean, obviously a lot of different plans can have one majority black district, but these plans you're referring me to had two majority black districts, compact majority black districts.
Edwin M. Speas, Jr.: --I don't believe that any individual put before the General Assembly at a time--
Antonin Scalia: But that's the whole point.
Edwin M. Speas, Jr.: --a plan that had two districts--
Antonin Scalia: Can you create two?
Edwin M. Speas, Jr.: --Yes.
Antonin Scalia: I know you could create one here, or you could create one somewhere else, but is there any evidence that you could create two simultaneously majority black, which is what your remedy proposes to do.
Edwin M. Speas, Jr.: I believe, Your Honor, that the legislators believed that could be done. There is in the record of this case--
Antonin Scalia: Well, they have to be right. Is there any evidence in this case that they were right about that?
Edwin M. Speas, Jr.: --Well, yes, Your Honor. At page 155 of the joint appendix is an article which recounts a private meeting of North Carolina Democratic legislative leaders at which... and Congressmen, at which they conclude that yes, two districts can be drawn. This was, of course, just 2 days... or 2 weeks before the plan itself was enacted.
William H. Rehnquist: Well, two districts can be drawn in the sense of, we can legislate them, or two districts can be drawn under the Gingles test?
Edwin M. Speas, Jr.: Two districts that can be drawn, I believe is the thrust of their statements, that some people--
Antonin Scalia: We know that.
Edwin M. Speas, Jr.: --would perceive to be--
Antonin Scalia: It's been done. The issue is whether two compact districts can be created, which is what would create... which would... what would produce an alleged section 2 violation if you didn't create two black districts, but you... it seems to me you have to do step one, which is, under Gingles... Gingles, whatever you want to say it, that there have to be two creatable, compact black majority districts.
Edwin M. Speas, Jr.: --Of course, Your Honor, to a large extent, compactness is in the eye of the beholder.
Stephen G. Breyer: Can you create two or not? What about this map 1, map 2, and map 3? Does that show it, or not? Well, I mean, if you don't know, don't bother answering that.
Edwin M. Speas, Jr.: I'm sorry, Your Honor.
Stephen G. Breyer: Just... I mean, has anybody sat down and done it, so that you could show that you could create two compact majority minority districts in the State, or majority black districts?
Edwin M. Speas, Jr.: There are... there were numerous plans presented to the General Assembly--
Stephen G. Breyer: Compact.
Edwin M. Speas, Jr.: --Fact.
Stephen G. Breyer: Compact.
Edwin M. Speas, Jr.: Which included two majority minority districts.
Stephen G. Breyer: That were compact.
Edwin M. Speas, Jr.: In several of the plans, one of the districts was compact to the eye, and the others, the district might not have been compact to the eye, but all together--
Antonin Scalia: Majority black is what we're talking about, not just majority minority... majority black.
Edwin M. Speas, Jr.: --I understand... I understand.
Antonin Scalia: The last time you said majority minority. I don't think you meant that.
Edwin M. Speas, Jr.: I understand the distinction you're making.
David H. Souter: Let me ask... oh, I'm sorry, are you still answering Justice Breyer's question?
Edwin M. Speas, Jr.: No.
David H. Souter: Okay. Let me ask you a different question. Do you take the position that if a given majority minority district can be created so that the Gingles... subject to the Gingles criteria, that then, in pursuit of other districting objectives, a majority minority district can be created somewhere else in the State that is in no way coincident with the compact Gingles district? Do you take that position?
Edwin M. Speas, Jr.: Yes, we do.
David H. Souter: No overlap at all.
Edwin M. Speas, Jr.: We take that position--
David H. Souter: It's not merely the case that you can modify around the edges, move to the right, move to the left a bit here and there, in order to obtain other objectives. You can go to an entirely different part of the State and have a district which is in no way geographically coincident with the one that would... you use to satisfy the Gingles condition.
Edwin M. Speas, Jr.: --Charlotte, of course, was coincident.
David H. Souter: That's... that's... your answer is yes.
Edwin M. Speas, Jr.: Virtually all of these districts in Charlotte and Gastonia are a large part of--
David H. Souter: But your answer is yes to my question, is that--
Edwin M. Speas, Jr.: --My answer is that it is within the State's discretion once it has a basis to believe that a section 2 violation could be established, to determine where to place the district. That discretion is not without limits.
Anthony M. Kennedy: --How does that comport with narrow tailoring? I thought narrow tailoring meant, and correct me if I'm wrong because we've used it in slightly different formulations in different cases.
Edwin M. Speas, Jr.: Yes.
Anthony M. Kennedy: But I thought that narrow tailoring meant that there is a wrong, and that the remedy has to be as closely designed to cure that evil as possible, and what you're telling me now is that once you find that there's a violation, you can adopt any remedy you want--
Edwin M. Speas, Jr.: No.
Anthony M. Kennedy: --and that seems to me quite the polar opposite of narrow tailoring.
Edwin M. Speas, Jr.: No, Your Honor. There are, obviously, limits on the State's discretion in determining where to place the district. The two most obvious are first, Your Honor, that there must be some racially polarized voting within the area in which you locate the district, and I believe the evidence in this case is that there is racially polarized voting throughout North Carolina, including the area encompassed within the 12th District, and because, Your Honor, I believe narrow tailoring includes, and perhaps most importantly includes, a requirement that the harm to innocent third parties be minimized, I believe that fair and effective representation is a limit on the discretion of the State. You must--
Anthony M. Kennedy: What is the harm to innocent third parties?
Edwin M. Speas, Jr.: --My understanding of your prior decisions is that the existence of harm, of some harm to innocent third parties as a consequence of the action taken to remedy a discrimination is an important element of narrow tailoring.
Anthony M. Kennedy: That would comprehend exclusion of whites from a district because of their race. That's harm to an innocent third party, I take it.
Edwin M. Speas, Jr.: Well, Your Honor, the evidence in this case establishes that the 12th District provides, and the court found, fair and effective representation for all citizens.
Anthony M. Kennedy: I'm asking what harm, an example of harm to an innocent third party is in the context of redistricting. I take it, it's the exclusion of some people by reason of their race from a different... from a district that they otherwise would be in.
Edwin M. Speas, Jr.: A harm--
Anthony M. Kennedy: That has ties to their community and to their former district.
Edwin M. Speas, Jr.: --A harm to an innocent third party could be denial of accessibility between them and their representatives.
Anthony M. Kennedy: Yes.
Edwin M. Speas, Jr.: This district doesn't do that.
Antonin Scalia: Well now, wait. You would say there's no harm to a racial group if they're made to ride in a separate railroad car, so long as it's just as nice as the railroad car in which other people are made to ride?
Edwin M. Speas, Jr.: No, Your Honor.
Antonin Scalia: No harm to fair and effective transportation, or schooling, if they're made to go to a separate school? No harm to fair and effective legislation? It seems to me you're making the same argument. There's no harm to fair and effective representation. But I've been excluded from my district because of my race, the individual says, and that shouldn't happen.
Edwin M. Speas, Jr.: I don't think that's what I'm saying, Your Honor. What I'm saying is this 12th District, for example, provides fair and effective representation for black voters, obviously. It also provides fair and effective representation for all voters, both black and white, because it's an urban district. It provides fair and effective representation for all voters, both black and white, because it's located within an area of the State that geography--
Sandra Day O'Connor: Well, now we're back to that same peculiar test, and I don't know what it has to do with narrow tailoring.
Edwin M. Speas, Jr.: --It was certainly our understanding, and the district court found, that an element of narrow tailoring is whether there's harm to innocent third parties.
David H. Souter: Then why shouldn't it also be an element of narrow tailoring whether there is any amelioration to the black voters who were the subject of the Gingles qualifying analysis in the first place? Apparently, they are ignored.
Edwin M. Speas, Jr.: This district--
David H. Souter: No, but on your theory, they can be ignored, because you said you can put the district anywhere else in the State, and it need not in any way be coincident with, we'll call it the Gingles qualifying district, which allows you to do this in the first place.
Edwin M. Speas, Jr.: --The harm to black citizens, Your Honor, is the dilution of their votes, the racially polarized voting.
David H. Souter: And those whose votes were diluted and subject to a Gingles remedy on your analysis can be ignored entirely.
Edwin M. Speas, Jr.: I don't believe that's the consequence of--
David H. Souter: Then why don't you take the position that there's at least got to be some coincidence between the ultimate majority minority district and the Gingles district, which allows you to do this in the first place?
Edwin M. Speas, Jr.: --Your Honor, there... you... I believe there is coincidence between the harms and North--
David H. Souter: Then I don't understand your answer. There's no coincidence of the actual voters in what I will call the Gingles district and the ultimate resulting district on your theory. There need not be any coincidence on your theory.
Edwin M. Speas, Jr.: --All North Carolina black citizens have been the victims of racially polarized voting. I believe that's the evidence in this case, and the State cannot--
David H. Souter: So your position is a kind of racial entitlement theory, as opposed to individual group of voters entitlement theory.
Edwin M. Speas, Jr.: --It would... the group of voters within the district where the racially polarized voting exists would be--
David H. Souter: Any district in which racially--
Edwin M. Speas, Jr.: --Would be... receive the benefit of the Ameliorative black vot--
Antonin Scalia: --Mr. Speas-- --Wait a minute, is racially polarized voting a constitutional violation? Does somebody who votes on the basis of--
Edwin M. Speas, Jr.: --It is--
Antonin Scalia: --race commit a constitutional violation? I didn't realize that.
Edwin M. Speas, Jr.: --Vote dilution through racially polarized voting is--
Antonin Scalia: Ah. So the constitutional harm is having a concentrated number of persons of a certain race which has been denied... which has been denied representation. It seems to me the harm assumed by Gingles Gingles is within the district that could have been made a voting district but has not been. That's the harm. It's not the fact that somebody engages in racial voting. That's regrettable, but it's not unconstitutional.
Edwin M. Speas, Jr.: --The evidence in this case, Your Honor, is that there are significant concentrations of black citizens in this district. They reside within each of--
Ruth Bader Ginsburg: Mr. Speas, your answers to the questions that is part 2 of your argument seem to be colored by what is your main position, which you haven't had an opportunity to state. I think you said that despite Shaw I the district court did not have to go right into the strict scrutiny compelling State interest mold. Your first argument seemed to be that race didn't predominate, and my question to you is, if it didn't, what did? Your main argument is not this section 2, so maybe in the time remaining you have an opportunity to say what is your main position in this case.
Edwin M. Speas, Jr.: --Our first position is, the district is not subject to strict scrutiny.
Ruth Bader Ginsburg: And why not?
Edwin M. Speas, Jr.: The district court did not have the benefit of this decision, of this Court's decision in Miller when it decided this case. It applied a test that's too lenient. It said, the test is whether race was one of several substantial and motivating factors in the local redistricting process. The evidence in this case, and the district court found, that race was used in combination with five other factors. The district court found in this case that the desire to create a homogeneous district was one factor given primacy, and I think it's important the Court examine--
William H. Rehnquist: I think you've finished the answer to the question, Mr. Speas.
Edwin M. Speas, Jr.: --Thank you.
William H. Rehnquist: Mr. Chambers, we'll hear from you.
Julius LeVonne Chambers: Mr. Chief Justice, and may it please the Court-- I would first begin pointing out that this case is not Gomillion v. Lightfoot. Nobody has excluded any citizen of North Carolina from participating in the electoral process. Black and white citizens are, through this legislation, provided for the first time in over 90 years an opportunity to now have a voice... an opportunity to have a voice in the election of Congresspeople in North Carolina. We have gone through a period in North Carolina where we have purposely discriminated against black people. We've then moved, only through the urging of legislation and this Court, to periods where we have permitted blacks to register and vote. We've moved to the Voting Rights Act. We now for the first time have gotten to a point where black people will have a voice, or an opportunity to have a voice in the election of Congresspeople, and I hope in the Court's review of this case it appreciates that we're operating not in a vacuum, but in a situation where we've had a history of purposely excluding black people. And now we're trying to devise a remedy, and that remedy is one, I submit, this Court has approved, where we say it is necessary to have a majority black district in order to give black people an opportunity to have a choice in who represents them in the legislature. Nobody is guaranteeing any black representative. We are only giving people a voice, and we know from the decision in Gingles that this Court, and that the Congress in enacting section 2, felt it imperative that we create districts where people would have a real voice and not a farce.
Antonin Scalia: Mr. Chambers, many people think that black people can have a greater voice when they are close to a majority, or at least a substantial minority in a lot of districts, rather than a majority in one or two districts. Indeed, the charge is made that it is very much in the political interests of some people to aggregate all blacks into one or two districts so that the rest of the districts can ignore their interests. I don't... you know, I am in total sympathy with the objective that you're urging upon us, but it certainly isn't clear as a matter of principle or logic that this is the only way to achieve that objective. Indeed, there are many who think that this is moving in precisely the wrong direction, that its net effect is to reduce the opportunity of blacks to have their interests taken into account. I frankly don't know what the answer is, but I certainly can't agree with you that this is the only way to achieve it.
Julius LeVonne Chambers: I understand that, Your Honor. We had a district in North Carolina that provided, we thought, an opportunity, with 42 percent black votes. Because of racially polarized voting we couldn't elect a candidate of choice.
Antonin Scalia: What does that mean, you couldn't elect a candidate of choice? is it clear that the candidate you elected ignored the interests of black people, or is it just that he was not black?
Julius LeVonne Chambers: It's because the candidate was not the representative of choice for African Americans in North Carolina.
Antonin Scalia: I don't know what that means.
Julius LeVonne Chambers: It means, Your Honor, the same thing it would mean for you if you didn't have a voice in the election of your representative. We've gone through periods where we know, through the legislation that's been passed in Congress, where the interests of black people haven't been represented. Congress sought through the legislation in 1982 to ensure for at least once we would move beyond that, and now we have this chance and this opportunity through section 2 of the Voting Rights Act to ensure that black people... and we know through experiences in North Carolina, and this Court found this in Gingles, that simply providing an opportunity district would not ensure the kind of opportunity that African Americans needed.
Sandra Day O'Connor: Well, let me ask you this. Assuming that it can be shown that the Gingles factors are met to establish a section 2 violation, and that there is an area in the State where there is a reasonably compact block of black voters that could be combined in a district and where there is evidence of racially polarized voting, or block voting, so that you could create a district there, then Gingles would suggest that's what you look at to see if there's a section 2 violation. Now, if you establish that, can the remedy be to create a district in a different part of the State, not where the evidence showed at all that would satisfy Gingles, but go to a completely different part of the State and create something there? Is that a narrowly tailored remedy?
Julius LeVonne Chambers: Your Honor, in this case, in this State--
Sandra Day O'Connor: Well could--
Julius LeVonne Chambers: --Yes.
Sandra Day O'Connor: --Just in general could you answer?
Julius LeVonne Chambers: Well, in general, I would say that if we're looking at a congressional district, and we're looking at a State, I would submit that it would permit the State, using its discretion, which is the second point I wanted to raise with you, to decide how to locate that particular district in that State in order to accommodate that injury. The injury, I submit, is to all the people in North Carolina who, because of the way we structured the system, are suffering from dilution of their votes and not having a voice in the election of representatives. Now, in this district here, we had two plans... the Court asked about this... that assured that blacks would be able to elect a representative of choice. These plans are in the record. They are Exhibit 10, and they're filed with the Court, and they're maps that were run through the legislature. What the State saw was it could draw a district running from Charlotte or Gastonia down through, either to Wilmington or up back through, near Raleigh. These were, in your words, compact districts, which is the third point that I wanted to raise with you, and they saw the potential violation of section 2. And Justice Kennedy, you asked about whether Gastonia residents could file a lawsuit. I submit to you, they could. You're not confining this to Gastonia. You could begin in Gastonia.
Anthony M. Kennedy: Well, don't they have to show the Gingles factors?
Julius LeVonne Chambers: They would show it.
Anthony M. Kennedy: Well, I--
Julius LeVonne Chambers: We're talking about--
Anthony M. Kennedy: --We can examine that later, but let me ask you, are you trying to suggest, or are you suggesting that perhaps the Gingles factors have been overemphasized--
Julius LeVonne Chambers: --Yes.
Anthony M. Kennedy: --or unimportant?
Julius LeVonne Chambers: I would submit, the way we have proceeded with the Gingles factors... and this is the compactness that the Court has talked about here today. Compactness ought to be viewed in terms of what's meaningful, functional, what works.
Anthony M. Kennedy: But you see, what... where we are, Mr. Chambers... as you know this as well or better than I, two very volatile areas, race and politics, in which there has been no long tradition or settled juridical principles about what are neutral, fair, adequate districting considerations. It's been the law of the jungle. And the point of Gingles was to try to introduce some neutral, controlled factors that could be the beginning point for building a principles jurisprudence, and I'm somewhat concerned that you suggest that we somehow now sweep those under the rug and put us back in the anything goes area.
Julius LeVonne Chambers: That's not what I said, Your Honor. Remember, too, in Gingles we were dealing with a State legislature, State Houses, State Senate seats, not with a congressional district, and second, as we talked about compactness and contiguity, we were assuming that that was what was necessary in order to ensure that we bring people together with a community of interest. We now see from the findings in this Court, now before this Court, that we can look at things that, of the way the State develops, and that's the peculiarity of North Carolina, to help ensure the same kind of community of interest, the same kind of opportunity of people working together, not just because they're black, but--
Anthony M. Kennedy: But that leads us just to proportional representation--
Julius LeVonne Chambers: --No, it doesn't.
Anthony M. Kennedy: --and quite apart from the section 2, which points in these different directions, quite apart from there, it seems to me proportional representation is the last thing that you should argue for--
Julius LeVonne Chambers: I'm not arguing for proportional representation.
Anthony M. Kennedy: --that it's ultimately very, very dangerous and divisive.
Julius LeVonne Chambers: Your Honor, I'm not arguing for proportional representation. Even if we... if the Court sustains the plan here, we will not have proportional representation. We make up 22 percent of the population. The plans would guarantee about 2 percent, or may guarantee at least an opportunity for 18 percent. We're not talking about proportional representation. What we're talking about is ensuring at once, at least for once, a chance now to have a chance to have a voice in the election of your representatives.
William H. Rehnquist: Thank you, Mr. Chambers.
Julius LeVonne Chambers: Thank you, Your Honor.
William H. Rehnquist: Mr. Bender, we'll hear from you.
Paul Bender: Thank you, Mr. Chief Justice, and may it please the Court-- Let me start with the question that has occupied the Court during much of this argument, and that is the question of whether, if the Gingles factors are satisfied so that there's a compelling interest in satisfying section 2 by drawing minority majority districts, whether the State can then locate those districts anywhere in the State. It is not our position that the State can locate them anywhere in the State, and in this case the State did not locate them anywhere in the State. The District 12 which was ultimately drawn here contains two areas, the Charlotte area here, and the Durham area here, which are... contain a substantial part of the black population. In this district Charlotte alone contains a little over 30 percent of the black population in this district. Durham contains some more. Both of those areas were in a compact district in the Shaw II plan that's in the joint appendix. It's this plan here. Charlotte was in this district, and Durham was in this district, so there's a substantial overlap between those people. And in addition, another limiting criterion, Justice Kennedy, is that the district must be placed in an area so that the majority of the black population in the district has been a victim of the polarized voting that invoked section 2, and a majority of that population is politically cohesive with other minorities in the State who have been the victims of that, and the findings of fact in this case, which are amply supported by the evidence, are that that was exactly true here.
Stephen G. Breyer: Is it the case that if, in fact, those criteria are met... you see, what... I find it quite difficult, because there's a constitutional principle that you're permitted to do this when there's a compelling need, and then it has to be narrowly tailored. And by itself, narrowly tailored might suggest compactness, but is there a principle involved that, if it is compact, and you insist on it, then only black related districts would have the requirement of not taking into account protecting incumbencies, while white districts would not have such a requirement, and can the Constitution permit such a result, if that's right? And what I want you to address, if you can, is if that's right, there's a constitutional principle each way. Narrow tailoring cuts in favor of compactness, but the basic principle of equal protection of the law would seem to cut in the opposite direction, so how can those be reconciled?
Paul Bender: Well, I think that's exactly right. If North Carolina had wanted to create a district in which farmers were a majority, there's no constitutional principle which would stop it from creating a noncompact district like that.
William H. Rehnquist: Well, Justice Breyer's question asked you about the creation of a white district. Would that be constitutional?
Paul Bender: No, not a district based on race. Section 2 only would justify a district for minority's interests. But I was saying, there are other... take the desire of a State to create the district that has a majority of farmers in it. I take it that that's a legitimate interest that a State could have, and that a State in vindicating that interest could design a noncompact district. In this case, the district court found that the State acted not to satisfy a desire of the States, but to satisfy an obligation of the States, an obligation to comply with Federal law, an obligation to comply with section 2 of the Voting Rights Act. I can't believe that when the State acts to satisfy a statutory and perhaps even a constitutional obligation xx has less discretion in doing that, in employing its other--
Sandra Day O'Connor: Well, the problem... the problem, of course, is the Fourteen Amendment and its prohibition that the State not act on the basis of race alone in handing out public benefits, or in drawing district lines, or whatever it is. I mean, that's why we're into this, and that's... it doesn't talk about farmers, it talks about race, doesn't it?
Paul Bender: --Well, I think in this area, Justice O'Connor, the State can act on the basis of race in order to create a majority minority district in order to counteract the effects of past voting discrimination, which was present in North Carolina for a long time, and the legacy of that discrimination, which is the polarized voting. It's unusual that a State can do that, and it--
Antonin Scalia: Mr. Bender, what are the two districts, the two Gingles Gingles concentrated districts that you rely on for this compulsion? Two at the same time.
Paul Bender: --There are not--
Antonin Scalia: Not two in different programs.
Paul Bender: --As far as we can tell, there were not two majority black districts.
Antonin Scalia: Yet that is what this strange configuration--
Paul Bender: This is the majority--
Antonin Scalia: --was intended to create, right?
Paul Bender: --But the obligation under Gingles is to create a minority opportunity district. That is what the statute says.
Antonin Scalia: But this degree of departure from normal districting principles was not necessary to comply with what you say section 2 required.
Paul Bender: That's right, but that would have forced the State--
Antonin Scalia: You could have had a much more concentrated second district if you were only going for majority minority, but instead, the State chose to go for two majority black districts in spite of the fact that no one has given us any indication of why the failure to have a second majority black district could possibly have been a section 2 violation.
Paul Bender: --Two points there. One, they chose to do that because if they had done this district, this would be a district that had almost no coherence except that it was a minority majority district. This district mixed rural and urban people together, there was no community of interest there, and a second reason they didn't--
Antonin Scalia: Whereas the community of interest here is what, that they're all black?
Paul Bender: --No, that 80 percent of them are urban, and the State deliberately decided to create an 80 percent urban district here, and an 80 percent rural district here, as a purpose.
Antonin Scalia: In figuring it out--
Paul Bender: Yes.
Antonin Scalia: --did they take into account minority, or did they punch into the computer just black?
Paul Bender: In doing this--
Antonin Scalia: Yes, in figuring out this strange scheme.
Paul Bender: --I don't know what they punched into the computer, but they--
Antonin Scalia: My impression is that they punched in... that they punched in black, that they were looking specifically for two majority black districts, and there is no justification that anyone has asserted under section 2 for punching that into the computer.
Paul Bender: --No, there is. Section 2 says that if minorities are denied a fair opportunity to participate in the political process because of racial polarization in voting and because the minorities... and when the minorities are cohesive, then you have to create a majority minority district for them. Now, it's true that in this case, as you pointed out a number of times, the second district that was compact was not a majority minority district, it was a 49 point something percent minority district, and of that 49 percent, I think about 42 percent were black, and about 7 percent were Native Americans. The statute, section 2, which is what we're applying here, doesn't require a majority minority district. Gingles said that, but I think it said that as an approximation. What the statute requires is to give the minorities a fair opportunity to participate in the political process, and how much of a percentage of minorities you need to do that depends upon the extent of polarized voting.
Antonin Scalia: What about the other minorities that form the almost majority in the concentrated district that was identified but not used? What about them? They were what, Hispanic and Indian?
Paul Bender: You're talking about the district--
Antonin Scalia: Yes. You said you formed, you know, 49 point some odd percent.
Paul Bender: --Yes.
Antonin Scalia: Almost a majority, though not even a majority, much less a majority black, but you formed that out of a district in which only 42 percent were black.
Paul Bender: That district would have had about 42 percent black.
Antonin Scalia: Well, what xx--
Paul Bender: But that would have been a district in which minorities would have had a fair opportunity to have candidates of choice elected, because they would have had a sizeable enough population so that with a right cross over voting--
Antonin Scalia: --And the theory is that Hispanics and Indians in that concentrated district, their interests will be well enough taken care of by the all black district in the northern part of the city.
Paul Bender: --There was evidence, I believe, that the two groups voted as a cohesive minority, and all of those factors are perfectly relevant, completely relevant, necessarily relevant under section 2. So you shouldn't have... if it's 49.9 percent it's no good, and if it's 50.1 it is. That doesn't make any sense. The sense here is to give minorities a chance to participate fairly in the political process and North Carolina has done that. You can't force North Carolina to abandon other nonracial redistricting principles like keeping communities of interest, urban and rural, together, or like satisfying incumbency protection.
David H. Souter: Do those principles--
Paul Bender: You can't force them to give those up.
David H. Souter: --Do those principles have to be historically justified?
Paul Bender: Those nonracial principles?
David H. Souter: Yes, urban with urban, rural with rural?
Paul Bender: I don't think they have to be historically justified. They have to be nonracial, and principles that the State wishes to use for nonracial reasons.
David H. Souter: Didn't you refer to traditional principles, and wasn't... I assume the reason we did so was that we assume the... if there is tradition behind the principles, they are less manipulable--
Paul Bender: I agree.
David H. Souter: --to come out... yes.
Paul Bender: Tradition is a very good way of showing that they weren't done here for racial reasons, but if you are convinced, as the court was in this case, that they are not done for racial reasons, I don't think the fact that this is the first time they decided that they needed to have an urban district because of urban problems that had recently arisen and they think that it's important for those people to vote together, I don't think the fact that that's just happened in the last 10 years should disqualify them from doing it.
Stephen G. Breyer: Suppose a State passed a law, and the law said, we can use incumbency protection as a principle except in one instance. Anyone who's elected out of section 2 districts and who is black can't use that principle. Would that law survive constitutional challenge?
Paul Bender: I think it would be unconstitutional.
William H. Rehnquist: Thank you, Mr. Bender. The case is submitted.