In opening sentence of her opinion for Court in Shaw v. Reno, North Carolina racial gerrymander case, Justice O'Connor observed that case involve[d] two of most complex and sensitive that Supreme Court has had to confront: the meaning of constitutional 'right' to vote, and propriety of race based state legislation designed to benefit members of historically disadvantaged racial minority groups. Had she stopped there, Justice O'Connor would have had consensus within Court. But she went on to grapple with these issues and has spurred further discussion and debate about race and voting rights--a topic that had already gained political center stage when President Clinton withdrew his nomination of Professor Lani Guinier to serve as Assistant Attorney General for Civil Rights. This article will analyze and evaluate Shaw in its doctrinal context and then examine some still unresolved questions. The Supreme Court's resolution of those issues will eventually determine whether Shaw is an analytically significant and doctrinally influential case or whether it reflects a response to a unique set of substantive and procedural circumstances that are non-replicable. The article begins in Section II with a discussion of procedural context of Shaw case and a consideration of substantive and practical implications of district court's decision. In Section III, article then examines nature of plaintiffs' claim by explaining race nondiscrimination paradigm, concluding that Court was correct in holding that vote dilution and race discrimination are analytically distinct theories with independent lines of case law supporting each one. The precedent-oriented dissent of Justice White is analyzed and critiqued in depth. The conclusion is that Justice White erroneously conflates vote dilution and race discrimination lines of cases. The principle-oriented dissent of Justice Souter is examined in detail and found to be both intellectually honest and substantively startling. Justice Souter argued that race-based Equal Protection claims involving districting should be treated differently than same claims in other contexts. His rationale for this categorical approach was that race cannot be avoided in legislative districting, and use of race does not disadvantage any individual because of race. The article concludes that Justice Souter's approach is excessively tolerant of use of race and in considerable tension with nondiscrimination principles emanating from Brown. Further, Justice Souter's observation that race is customarily a part of districting process does not explain why that fact, if such it be, should be constitutionally legitimized. To extent that Justice Souter's views were influenced by his understanding of Voting Rights Act, article concludes that neither Section 5 nor Section 2 of that Act supports Justice Souter's analysis. Finally, in Section IV, article examines five issues left unresolved by Shaw. It concludes that Shaw cannot sensibly and with doctrinal integrity be limited to weird districts. Under principle of racial reciprocity, it concludes, any intentional use of race should trigger strict scrutiny unless government can show that same districting decision would have been taken in absence of racial considerations. The article concludes by considering how Shaw interest. standard should be applied, analyzing nature of an appropriate compelling interest, how narrow tailoring inquiry should be addressed, and how burden of proof should be allocated under strict scrutiny.
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