Reading Shaw v. Reno Case Excerpts

0:00 Can a state create a legislative district based on race? This is the question that the Supreme Court took up in the 1993 case of Shaw versus Reno. Hello, my name is Joshua Schmidt, I am a Content Specialist at the Bill of Rights institute. And today I’m excited to be joined again by Dr.

0:21 Josh Dunn as we take a look at this case. Hey Josh. Hi Josh. Good to see you again. You as well. So today’s Supreme Court case deals with the question of gerrymandering, which we define here as the manipulation

0:41 of district lines to give increased power to a political party or a class. Could you give me a brief history of gerrymandering in the United States? Well, it’s really as old as America. The name itself comes from Elbridge Gerry, who was governor of Massachusetts, and he was a member of the founding generation, but he was famous for drawing a salamander shaped district while

1:07 governor of Massachusetts and those who supported him. And so really, it’s, again, just as old as our country. People have been trying to manipulate district lines for partisan advantage for well over 200 years. Yes, and as we can see here, there are multiple ways that you can manipulate those lines, whether it be to get members of your political party

1:31 to increase the power they have or also different classes. So the Supreme Court has ruled that partisan or political gerrymandering is constitutional. It’s a legislative issue that they’re just going to generally leave up to the legislatures of different states.

1:53 However, the question that we deal with here is actually racial gerrymandering. And this has to do with this is going to come back to the Equal Protection Clause of the 14th Amendment, which we have here. No state shall deny to any person within its jurisdiction the equal protection of the laws.

2:15 So could you tell me why was the 14th Amendment originally passed? Why was the Equal Protection Clause added? So all of this was done in the aftermath of the Civil War, and it was done to constitutionalize several legislative pieces of legislation by congress right after the Civil War to protect,

2:36 essentially, the newly freed African Americans. And there were questions about whether or not what congress had done in, for instance, things like the Civil Rights Act of 1866, whether or not there was constitutional authority for it. So the 14th Amendment, along with the protections that you have in it, due process, equal protection, privileges or immunities,

2:58 these were all done to constitutionalize those decisions. Right. And then this comes down to really, how should we interpret what equal protection of the laws means when it comes to racial gerrymandering? Does that mean that dividing people up by race to specifically increase their political power, is that constitutional?

3:23 So could you give me a brief background on the case of Shaw versus Reno? Certainly. So, of course, after every census, we have reapportionment and redistricting where legislative seats are reallocated based on changes in the population, and then each state has the authority to redraw district lines. However, some states,

3:44 as a result of the voting rights act of 1965, they had to follow what’s called preclearance and that’s approval from the justice department because of their past history of discrimination. And so North Carolina had submitted a plan for redistricting, and it was declined by the justice department and in particular, Attorney General Janet Reno.

4:07 And she based her decision off of revisions to the voting rights act as when it was re passed in 1982. And she interpreted those revisions to say that North Carolina needed to try to increase minority representation. And so as a result of that, North Carolina did redraw its congressional districts for the House.

4:29 And it drew a very oddly shaped district to try to guarantee that a minority individual would be elected to that seat. And so these are called majority minority districts. But it’s very oddly shaped. Parts of it were essentially just the interstate because districts have to be contiguous.

4:50 And the joke was that if you were to open your doors while driving down the interstate, you could be in two congressional districts at the same time. Sure. So we return here to that constitutional question of can I create a legislative district based on race? And really the issue here comes down to, I think, is that nowhere

5:12 in the Constitution does it say what a legislative district should look like. So there’s question of what does it matter if it’s oddly shaped? That doesn’t make it unconstitutional, necessarily. But on the other hand, if we’re purposely splitting people up

5:33 by race in order to strengthen the political power of a certain group, is that unconstitutional? So how did the court end up rolling here? So, the court decided that race could not be the primary factor in the drawing of legislative districts. So, as you mentioned,

5:53 the Supreme Court has said that gerrymandering is constitutional. There are two main cases for that Vieth v. Jubelirer And Rucho v. Common Cause, Where the court has essentially said this has been practiced for a long time as well. There are no judicially manageable standards for us to actually decide what would be an unconstitutionally gerrymandered district.

6:15 So we aren’t going to get involved, it’s not justiciable. However, in this case, they said that you could forbid gerrymandering based on race because of the equal protection clause. And this goes to one of the core holdings of equal protection clause jurisprudence, which is that race based classifications are inherently suspect and therefore must receive heightened scrutiny.

6:37 And as we’ll see in a minute, Justice O’Connor talks about what the government has to do in order to survive this heightened or strict scrutiny. Yeah. So we have here Justice O’Connor’s majority opinion, and she talks here about the dangers of racial classification.

6:58 She talks about that the 14th Amendment was actually created to prevent that, essentially, unless there is what she calls a compelling governmental interest in doing so. Right. So compelling government interest and it must be narrowly tailored.

7:20 So again, as you mentioned, you can have oddly shaped districts that are gerrymander for just base partisan politics. But for the Court, they looked at this, it was obvious what North Carolina had done because they were responding to the Justice Department and in the process they had to create this very strange looking district.

7:41 And what the majority said is this is not a compelling government interest. There are actually things that mitigate against it being a compelling government interest. Then we have here another quote from her opinion and here she really dives into the potential issues that that racial gerrymandering can pose

8:05 to a society like the United States that’s founded on a principle of equality. Exactly. So again, this is what the Court had developed its Equal Protection Clause jurisprudence. It was profoundly sensitive to racial classifications. It’s never officially said that we have to have a color blind Constitution,

8:27 as Justice Harlan argued for in his dissent in Plessy versus Ferguson. But they do believe that racial classifications can be very insidious and leads to even more conflict. And that’s one of the reasons for the Protection Clause is to try to get rid of those race based classifications which would then tend to divide us.

8:51 So not all the Justices agreed, I believe the vote was five to four, so it was very close. And we have here a section from Justice John Paul Stevens’s dissent. And here he makes the argument that the true difference between what makes constitutional gerrymandering and unconstitutional gerrymandering is

9:15 whether it’s increasing the power of a minority group. So he argues that if you would racially gerrymander to increase a majority power or a majority group, I should say that’s unconstitutional. However, because in this case the district

9:36 was designed to give greater power to black residents of North Carolina. He argues that it was constitutional right. And obviously the majority simply disagreed with them because what they would say is that there’s not an Equal Protection Clause for just power in general.

9:57 But race is particularly the object of the Equal Protection Clause. And so therefore, for the majority, they clearly weren’t persuaded by Stevens, but he is willing to set some of those concerns aside and say that they really are quite comparable.

10:17 So where do we stand today then with racial gerrymandering? This case happened decades ago. Has there been any changes since then? Well, this case actually went back before the Supreme Court several times and the Court had to revisit a redrawn 12th District and they finally approved it several years later and once again in a very close five to four decision.

10:43 But the principle is still race cannot be the sole factor in the drawing of congressional districts or state legislative districts. So that’s essentially where we stand. And if the courts determine that you have done that, then a state is going to have to go back to the drawing board. Great. So returning to this constitutional

11:04 question, I think you just gave a great summary. Essentially, there is a very high standard that needs to be met in order to justify racial gerrymandering. And essentially, I think from what you’re saying, correct me if I’m wrong, that standard is rarely met. It’s not yes, it’s pretty clear that the Court’s

11:27 position in Shaw versus Reno is that you cannot do this. Now, there are some interesting kind of political facts that relate to the law on this case as well that it might be worth mentioning, which is that it turns out that Republicans in North Carolina, Carolina love these districts.

11:48 Because if you go back to that question of gerrymandering, there are two basic ways to try to harm your political opponent. It’s either cracking or packing. So cracking would be diluting the voters of your opposing party, and packing would be concentrating them into as few districts as possible. And that’s what actually happened with racial gerrymandering,

12:10 because African Americans tend to vote Democratic 80% to 90%. And so there was a very strange kind of political argument that went on where Republicans largely supported these, but the Democratic establishment opposed them because it weakened the Democratic Party. And then you went to the Supreme Court and based on ideology, you would say the conservative justices

12:32 were voting for something that would then help the Democratic Party, and the liberal Justices were voting for something that would hurt the Republican Party, that would hurt the Democratic Party. There was also a debate on the nature of representation that emerged in this case on what actually does it require to be a representative.

12:57 And it’s the same debate that you had between the Federalists and the Anti Federalists, where the Federalist argued for a pluralist model, which is that you would have representatives who would have to represent many different interests within their district, where the Anti Federalist preferred a delegate model, which meant that you wanted someone as much like you as possible. So they’re really fascinating debates

13:18 that this case raised, beyond just they’re related to gerrymandering, but go back again to the very founding of the country. So I’m just going to throw in a sound bite there. You mentioned constitutional interpretation versus the political ends. We’re going to be releasing an e-Lesson that actually dives into that question.

13:42 So I’ll include a link for that here so you guys can check that out and use that in your classrooms. So thank you again for joining me. Dr. Josh Dunn I really enjoyed this conversation. For those of you who are interested, we are going to be releasing a Homework Help video on the case of Shaw versus Reno.

14:04 So you can take that and give it to your students. It gives a really concise breakdown for a case that can be, quite frankly, very complicated for students to dive into. So thanks again for joining me and we’ll see you next time. So, did you learn something new? Do you know the Bill of Rights Institute has many more

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