of preparing a court-ordered redistricting plan, we interpret the
Supreme Court's command as requiring us to consider the Gingles test as
we draw, paying particular attention to those areas of the state where a
"politically cohesive minority group . . . is large enough to constitute
the majority in a single-member district." Voinovich, 507 U.S. at 153. In
this way, we operate much like the state legislature should, taking steps
to ensure that our plan will not have the effect, albeit unintended, of
diluting the voting strength of that majority-minority population. See
Abrams, 521 U.S. at 90-91.
2. Section 5: Avoiding Retrogression
Section 5 of the Voting Rights Act likewise requires us to consider
race in our draw. This provision requires certain covered jurisdictions
— those with a history of discrimination against minorities
— to obtain either administrative preclearance by the Attorney
General or approval by the United States District Court for the District
of Columbia for any change in a "standard, practice, or procedure with
respect to voting." 42 U.S.C.A. § 1973c. To obtain preclearance, the
covered jurisdiction must demonstrate that the proposed change has
neither the purpose nor effect "of denying or abridging the right to vote
on account of race or color." 42 U.S.C.A. § 1973c; see McDaniel v.
Sanchez, 452 U.S. 130, 149 (1981)
Enacted as "a response to a common practice in some jurisdictions of
staying one step ahead of the federal courts by passing new
discriminatory voting laws as soon as the old ones had been struck down,"
Beer v. United States, 425 U.S. 130, 140 (1976) (internal quotation marks
omitted), § 5 "shift[s] the advantage of time and inertia from the
perpetrators of the evil to its victim, by freezing election procedures in
the covered areas unless the changes can be shown to be
nondiscriminatory," id. (emphasis added; internal quotation marks
omitted). "[T]he purpose of § 5 has always been to insure that no
voting-procedure changes would be made that would lead to a
retrogression in the Position of racial minorities with respect to their
effective exercise of the electoral franchise." Id. at 141 (emphasis
Although they share the goal of addressing the evils of racial
discrimination, § 5 differs in important respects from § 2 of the
Voting Rights Act. First, § 2 applies to all states, whereas § 5
applies only to those states, such as South Carolina, which have the worst
reputation for historical and ongoing discrimination against blacks.
Second, by requiring the creation of majority-minority districts where
vote dilution under the Gingles test would occur, § 2 looks beyond
the status quo to ensure that a redistricting plan affords blacks an
equal opportunity to elect the representatives of their choice as white
voters enjoy. See 42 U.S.C.A. § 1973(b); Gingles, 478 U.S. at 47.
Section 5, in contrast, maintains the status quo. It only prevents
"backsliding" in those jurisdictions subject to its requirements by
prohibiting the implementation of any proposed voting change that has been
enacted for a retrogressive purpose, see Reno v. Bossier Parish Sch.
Bd., 528 U.S. 320, 335 (2000) ("Bossier Parish II"), or that has a
retrogressive effect on minority voting strength, see Beer, 425 U.S. at
141. Section 5 requires no separate inquiry into the Gingles factors to
determine whether an opportunity district must be created, but "mandates
that the minority's [existing] opportunity to elect representatives of
its choice not be diminished, directly or indirectly, by the State's
actions." Bush v. Vera,
517 U.S. 952, 983 (1996)
The distinction between § 2 and § 5 was expounded upon by the
Supreme Court in Reno v. Bossier Parish School Board, 520 U.S. 471 (1997)
("Bossier Parish I"). There, the Court struck down the Department of
Justice's denial of preclearance under § 5 on the basis that the plan
was, in the opinion of the Department of Justice, violative of § 2.
See id. at 477. This position, the Court held, would "make compliance
with § 5 contingent upon compliance with § 2," and would
effectively "replace the standards for § 5 with those for § 2."
Id. The Court explained that such an interpretation would contradict its
"longstanding recognition that the two provisions were designed to combat
different evils, and, accordingly, to impose very different duties upon
the States." Id.
Thus, in the redistricting context, Section 5 has a quite limited
substantive goal — to insure that the state does not adopt a
redistricting plan that, when compared to the existing or "benchmark"
plan, "would lead to a retrogression in the position of racial minorities
with respect to their effective exercise of the electoral franchise."
Beer, 425 U.S. at 141; see Holder v. Hall, 512 U.S. 874, 883 (plurality
opinion) ("Under § 5, then, the proposed voting practice is measured
against the existing voting practice to determine whether retrogression
would result from the proposed change."); Bossier Parish I, 520 U.S. at
478 (explaining that "the jurisdiction's existing plan is the benchmark
against which the `effect' of voting changes is measured"). Thus,
[i]n § 5 preclearance proceedings — which
uniquely deal only and specifically with changes in
voting procedures — the baseline is the status
quo that is proposed to be changed: If the change
"abridges the right to vote" relative to the status
quo, preclearance is denied, and the status quo
(however discriminatory it may be) remains in effect.
Bossier Parish II, 528 U.S. at 334.
"Section 2, on the other hand, was designed as a means of eradicating
voting practices that minimize or cancel out the voting strength and
political effectiveness of minority groups." Bossier Parish I, 520 U.S. at
479 (internal quotation marks omitted). It involves changes to the status
quo itself. See Bossier Parish II, 528 U.S. at 334. Because a
determination of vote dilution requires "the existence of an `undiluted'
practice against which the fact of dilution may be measured, a § 2
plaintiff must also postulate a reasonable alternative voting practice to
serve as the benchmark `undiluted' voting practice." Bossier Parish I,
520 U.S. at 480. Thus, "the comparison must be made with a hypothetical
alternative: If the status quo results in an abridgement of the right to
vote or abridges the right to vote relative to what the right to vote
ought to be, the status quo itself must be changed." Bossier Parish II,
528 U.S. at 334 (alterations and internal quotation marks omitted).
Because South Carolina is a covered jurisdiction under the Voting
Rights Act, any redistricting plan that it adopts is subject to the
preclearance requirements of § 5. See Allen v. State Bd. of
Elections, 393 U.S. 544, 548-49 (1969). A legislative plan still reflects
"the exercise of legislative judgment" and "the policy choices of the
elected representatives of the people"; such plans, therefore, remain
subject to preclearance under § 5 even if later reviewed
by a court. See McDaniel, 452 U.S. at 153.
Generally, "a decree of the United States District Court is not within
reach of Section 5 of the Voting Rights Act such that it must be
precleared," Abrams, 521 U.S. at 95 (internal quotation marks and
alterations omitted), but "[t]he exception applies only to judicial plans
devised by the court itself," not to legislative plans which are
submitted to the court by the parties for consideration, id.; see Lopez
v. Monterey County, 525 U.S. 266, 286 (1999). Because we have
independently devised plans for each elective body from scratch,
however, none of the plans implemented by this court order are subject to
the preclearance requirements of § 5 and, accordingly, must be
immediately implemented for the upcoming elections.
Even where the court elects to devise its own plan, such that it need
not be precleared. the court must still "`follow the appropriate § 5
standards, including the body of administrative and judicial precedents
developed in Section 5 cases.'" Abrams, 521 U.S. at 96 (quoting
McDaniel, 452 U.S. at 149). Thus, like state legislatures, we must ensure
that our redistricting plan does not "lead to a retrogression in the
position of racial minorities with respect to their effective exercise of
the electoral franchise" in South Carolina. Beer, 425 U.S. at 141.
3. Equal Protection Constraints Upon The Voting Rights Act
Requirements; the Limits of Racial Gerrymandering.
In complying with the Voting Rights Act in the redistricting context,
we must also remain cognizant of the limitations the Fourteenth Amendment
of the United States Constitution imposes upon the permissible use of
race in the process. The Equal Protection Clause of the United States
Constitution requires racial neutrality in governmental decision-making.
See U.S. Const., amend. XIV, § 1 (providing that no State shall "deny
to any person within its jurisdiction the equal protection of the
laws"). And, the Supreme Court has repeatedly held that dividing voters
according to their race in the redistricting context is subject to the
strictures of the Equal Protection Clause. See Shaw v. Hunt, 517 U.S. 899,
904-05 (1996) ("Shaw II"); Miller v. Johnson, 515 U.S. 900, 905 (1995)
Shaw v. Reno, 509 U.S. 630, 644 (1993) ("Shaw I")
By prohibiting election plans that have the effect of diluting minority
voting strength or that lead to retrogression in the position of racial
minorities with respect to their effective exercise of the electoral
franchise, however, the Voting Rights Act necessarily forces states to
consider race in the redistricting context, placing the Act in obvious
tension with the Equal Protection Clause. The end result is that the
Voting Rights Act must always be considered in tandem with the strictures
of the Equal Protection Clause, with the latter operating as a constant
limit upon the degree to which state legislatures — and this court
acting in its remedial capacity — can engage in race-based
districting to achieve the goals of the Voting Rights Act.
Race-based classifications, of course, are generally subjected to
strict scrutiny and will pass constitutional muster only if the state
action is narrowly tailored to achieve a compelling state interest. See,
e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995). In
this case, however, we have no occasion to apply strict scrutiny, at
least not in the usual way. Strict scrutiny is a
level of judicial review applied to determine the constitutionality of a
law or other action already taken by the state. Because the General
Assembly failed to implement redistricting plans, we have no pre-existing
plans to which strict scrutiny could be applied. Instead, we are drawing
the plans ourselves, not reviewing plans drawn by the General Assembly.
Nonetheless, because our draw is guided by similar limitations as those
imposed upon states in the redistricting context, the purposes of a
strict scrutiny review are of importance in this case as well.
a. When does the consideration of race trigger strict scrutiny
The Equal Protection Clause, as interpreted by Adarand, would seem to
compel strict scrutiny of any governmental classification based on race.
However, the Court has held that strict scrutiny in the redistricting
context only applies where "race was the predominant factor motivating
the legislature's decision to place a significant number of voters within
or without a particular district." Miller, 515 U.S. at 916. Because a
state must observe the Voting Rights Act requirements when redistricting
its legislative and congressional districts, such redistricting decisions
necessarily differ from other types of governmental decision-making:
[T]he legislature is always aware of race when it
draws district lines, just as it is aware of age,
economic status, religious and political persuasion,
and a variety of other demographic facts. That sort of
race consciousness does not lead inevitably to
impermissible race discrimination. . . . [W]hen
members of a racial group live in one community, a
reapportionment plan that concentrates members of the
group in one district and excludes them from others
may reflect wholly legitimate purposes. The district
lines may be drawn, for example, to provide for
compact districts of contiguous territory, or to
maintain the integrity of political subdivisions.
Shaw I, 509 U.S. at 646. So long as race is only a consideration,
and other traditional districting principles such as compactness
and contiguity are not subordinated to it, the challenged majority-minority
district is not subject to strict scrutiny analysis.