City of Mobile v. Bolden

Mr. Justice Stevens,

concurring in the judgment.

At issue in this case is the constitutionality of the city of Mobile’s commission form of government. Black citizens-in Mobile, who constitute a minority of that city’s registered voters, challenged the at-large nature of the elections for the three positions of City Commissioner, contending that the system “dilutes” their votes in violation of the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment. While I agree with Mr. Justice Stewart that no violation of respondents’ constitutional rights has been demonstrated, my analysis of the issue proceeds along somewhat different lines.

In my view, there is a fundamental distinction between state action that inhibits an individual’s right to vote and state action that affects the political strength of various groups that compete for leadership in a democratically governed community. That distinction divides so-called vote dilution practices into two different categories “governed by entirely different constitutional considerations,” see Wright v. Rockefeller, 376 U. S. 52, 58 (Harlan, J., concurring).

In the first category are practices such as poll taxes or literacy tests that deny individuals access to the ballot. Dis-tricting practices that make an individual’s vote in a heavily populated district less significant than an individual’s vote in a smaller district also belong in that category. See Baker v. Carr, 369 U. S. 186; Reynolds v. Sims, 377 U. S. 533.1 Such *84practices must be tested by the strictest of constitutional standards, whether challenged under the Fifteenth Amendment or under the Equal Protection Clause of the Fourteenth Amendment. See, e. g., Dunn v. Blumstein, 405 U. S. 330, 337.

This case does not fit within the first category. The District Court found that black citizens in Mobile “register and vote without hindrance”2 and there is no claim that any individual’s vote is worth less than any other’s. Rather, this case draws into question a political structure that treats all individuals as equals but adversely affects the political strength of a racially identifiable group. Although I am satisfied that such a structure may be challenged under the Fifteenth Amendment as well as under the Equal Protection Clause of the Fourteenth Amendment,3 I believe that under *85either provision it must be judged by a standard that allows the political process to function effectively.

My conclusion that the Fifteenth Amendment applies to a case such as this rests on this Court’s opinion in Gomillion v. Lightfoot, 364 U. S. 339. That case established that the Fifteenth Amendment does not simply guarantee the individual’s right to vote; it also limits the States’ power to draw political boundaries. Although Gomillion involved a dis-tricting structure that completely excluded the members of one race from participation in the city’s elections,4 it does not stand for the proposition that no racial group can prevail on a Fifteenth Amendment claim unless it proves that an electoral system has the effect of making its members’ right to vote, in Me. Justice Marshall’s words, “nothing more than the right to cast meaningless ballots.” Post, at 104. I agree with Me. Justice Marshall that the Fifteenth Amendment need not and should not be so narrowly construed. I do not agree, however, with his view that every “showing of discriminatory impact” on a historically and socially disadvan*86taged racial group, post, at 104, 111, n. 7, is sufficient to invalidate a districting plan.5

Neither Gomillion nor any other case decided by this Court establishes a constitutional right to proportional representation for racial minorities.6 What Gomillion holds is that a sufficiently “uncouth” or irrational racial gerrymander violates the Fifteenth Amendment. As Mr. Justice Whit-taker’s concurrence in that case demonstrates, the same result is compelled by the Equal Protection Clause of the Fourteenth Amendment. See 364 U. S., at 349. The fact that the “gerrymander” condemned in Gomillion was equally vulnerable under both Amendments indicates that the essential holding of that case is applicable, not merely to gerrymanders directed against racial minorities, but to those aimed at religious, ethnic, economic, and political groups as well. Whatever the proper standard for identifying an unconstitutional gerrymander may be, I have long been persuaded that it must apply equally to all forms of political gerrymandering — not just to racial gerrymandering. See Cousins v. City Council *87of Chicago, 466 F. 2d 830, 848-852 (CA7 1972) (Stevens, J., dissenting), cert. denied, 409 U. S. 893.7

This conclusion follows, I believe, from the very nature of a gerrymander. By definition, gerrymandering involves drawing district boundaries (or using multimember districts or at-large elections) in order to maximize the voting strength of those loyal to the dominant political faction and to minimize the strength of those opposed to it.8 466 F. 2d, at 847. In seeking the desired result, legislators necessarily make judgments about the probability that the members of certain identifiable groups, whether racial, ethnic, economic, or religious, will vote in the same way. The success of the gerrymander from the legislators’ point of view, as well as its impact on the *88disadvantaged group, depends on the accuracy of those predictions.

A prediction based on a racial characteristic is not necessarily more reliable than a prediction based on some other group characteristic. Nor, since a legislator’s ultimate purpose in making the prediction is political in character, is it necessarily more invidious or benign than a prediction based on other group characteristics.9 In the line-drawing process, racial, religious, ethnic, and economic gerrymanders are all species of political gerrymanders.

From the standpoint of the groups of voters that are affected by the line-drawing process, it is also important to recognize that it is the group’s interest in gaining or maintaining political power that is at stake. The mere fact that a number of citizens share a common ethnic, racial, or religious background does not create the need for protection against gerrymandering. It is only when their common interests are strong enough to be manifested in political action that the need arises. For the political strength of a group is not a function of its ethnic, racial, or religious composition; rather, it is a function of numbers — specifically the number of persons who will vote in the same way. In the long run there is no more certainty that individual members of racial groups will vote alike than that members of other identifiable groups will do so. And surely there is no national interest in creating an incentive to define political groups by racial characteristics.10 *89But if the Constitution were interpreted to give more favorable treatment to a racial minority alleging an unconstitutional impairment of its political strength than it gives to other identifiable groups making the same claim, such an incentive would inevitably result.

My conclusion that the same standard should be applied to racial groups as is applied to other groups leads me also to *90conclude that the standard cannot condemn every adverse impact on one or more political groups without spawning more dilution litigation than the judiciary can manage. Difficult as the issues engendered by Baker v. Carr, 369 U. S. 186, may have been, nothing comparable to the mathematical yardstick used in apportionment cases is available to identify the difference between permissible and impermissible adverse impacts on the voting strength of political groups.

In its prior cases the Court has phrased the standard as being whether the districting practices in question “unconstitutionally operate to dilute or cancel the voting strength of racial or political elements.” Whitcomb v. Chavis, 403 U. S. 124, 144. In Zimmer v. McKeithen, 485 F. 2d 1297 (CA5 1973), aff’d on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U. S. 636, the Fifth Circuit attempted to outline the types of proof that would satisfy this rather amorphous test. Today, the plurality rejects the Zimmer analysis, holding that the primary, if not the sole, focus of the inquiry must be on the intent of the political body responsible for making the districting decision. While I agree that the Zimmer analysis should be rejected, I do not believe that it is appropriate to focus on the subjective intent of the decisionmakers.

In my view, the proper standard is suggested by three characteristics of the gerrymander condemned in Comillion: (1) the 28-sided configuration was, in the Court’s word, “uncouth,” that is to say, it was manifestly not the product of a routine or a traditional political decision; (2) it had a significant adverse impact on a minority group; and (3) it was unsupported by any neutral justification and thus was either totally irrational or entirely motivated by a desire to curtail the political strength of the minority. These characteristics suggest that a proper test should focus on the objective effects of the political decision rather than the subjective motivation of the decisionmaker. See United States v. O’Brien, 391 U. S. *91367, 384.11 In this ease, if the commission form of government in Mobile were extraordinary, or if it were nothing more than a vestige of history, with no greater justification than the grotesque figure in Oomillion, it would surely violate the Constitution. That conclusion would follow simply from its adverse impact on black voters plus the absence of any legitimate justification for the system, without reference to the subjective intent of the political body that has refused to alter it.

Conversely, I am also persuaded that a political decision that affects group voting rights may be valid even if it can be proved that irrational or invidious factors have played some part in its enactment or retention.12 The standard for testing the acceptability of such a decision must take into account the fact that the responsibility for drawing political boundaries is generally committed to the legislative process and that the process inevitably involves a series of compromises among different group interests. If the process is to work, it must reflect an awareness of group interests and it must tolerate some attempts to advantage or to disadvantage particular segments of the voting populace. Indeed, the same “group interest” may simultaneously support and oppose a particular boundary change.13 The standard cannot, therefore, be so *92strict that any evidence of a purpose to disadvantage a bloc of voters will justify a finding of “invidious discrimination”; otherwise, the facts of political life would deny legislatures the right to perform the districting function. Accordingly, a political decision that is supported by valid and articulable justifications cannot be invalid simply because some participants in the decisionmaking process were motivated by a purpose to disadvantage a minority group.

The decision to retain the commission form of government in Mobile, Ala., is such a decision. I am persuaded that some support for its retention comes, directly or indirectly, from members of the white majority who are motivated by a desire to make it more difficult for members of the black minority to serve in positions of responsibility in city government. I deplore that motivation and wish that neither it nor any other irrational prejudice played any part in our political processes. But I do not believe otherwise legitimate political choices can be invalidated simply because an irrational or invidious purpose played some part in the decisionmaking process.

As Mr. Justice Stewart points out, Mobile's basic election system is the same as that followed by literally thousands of municipalities and other governmental units throughout the Nation. Ante, at 60.14 The fact that these at-large systems *93characteristically place one or more minority groups at a significant disadvantage in the struggle for political power cannot invalidate all such systems. See Whitcomb v. Chavis, 403 U. S., at 156-160. Nor can it be the law that such systems are valid when there is no evidence that they were instituted or maintained for discriminatory reasons, but that they may be selectively condemned on the basis of the subjective motivation of some of their supporters. A contrary view “would spawn endless litigation concerning the multi-member district systems now widely employed in this country,” id., at 157, and would entangle the judiciary in a voracious political thicket.15

*94In sum, I believe we must accept the choice to retain Mobile's commission form of government as constitutionally permissible even though that choice may well be the product of mixed motivation, some of which is invidious. For these reasons I concur in the judgment of reversal.

In Reynolds v. Sims, the Court quoted Mr. Justice Douglas’ statement that the right to vote “includes the right to have the vote counted at full value without dilution or discount . . . ,” 377 U. S., at 555, n. 29, as well as the comment in Wesberry v. Sanders, 376 U. S. 1, 8, that “ 'one *84man’s vote in a congressional election is to be worth as much as another’s.’ ” 377 U. S., at 559.

This finding distinguishes this case from White v. Regester, 412 U. S. 755. In White the Court held that, in order to establish a Fourteenth Amendment violation, a group alleging vote dilution must

“produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” Id., at 766.

The Court affirmed a judgment in favor of black and Mexican-American voters on the basis of the District Court’s express findings that black voters had been “ 'effectively excluded from participation in the Democratic primary selection process,’ ” id., at 767, and that . . cultural incompatibility . . . conjoined with the poll tax and the most restrictive voter registration procedures in the nation ha[d] operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.’ ” Id., at 768.

Thus, I disagree with Mr. Justice Stewart’s conclusion for the plurality that the Fifteenth Amendment applies only to practices that directly affect access to the ballot and hence is totally inapplicable to the case at bar. Ante, at 65. I also find it difficult to understand why, given this position, he reaches out to decide that discriminatory purpose must be demonstrated in a proper Fifteenth Amendment case. Ante, at 61-64.

“The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens.

“According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights and to that end it has incidentally changed the city’s boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.” 364 U. S., at 346, 347.

I also disagree with Mr. Justice Marshall to the extent that he implies that the votes cast in an at-large election by members of a racial minority can never be anything more than “meaningless ballots.” I have no doubt that analyses of Presidential, senatorial and other statewide elections would demonstrate that ethnic and racial minorities have often had a critical impact on the choice of candidates and the outcome of elections. There is no reason to believe that the same political forces cannot operate in smaller election districts regardless of the depth of conviction or emotion that may separate the partisans of different points of view.

And this is true regardless of the apparent need of a particular group for proportional representation because of its historically disadvantaged position in the community. See Cousins v. City Council of Chicago, 466 F. 2d 830, 852 (CA7 1972) (Stevens, J., dissenting), cert. denied, 409 U. S. 893. This does not mean, of course, that a legislature is constitutionally prohibited from according some measure of proportional representation to a minority group, see United Jewish Organizations v. Carey, 430 U. S. 144.

This view is consistent with the Court’s Fourteenth Amendment cases in which it has indicated that attacks on apportionment schemes on racial, political, or economic grounds should all be judged by the same constitutional standard. See, e. g., Whitcomb v. Chavis, 403 U. S. 124, 149 (districts that are “conceived or, operated as purposeful devices to further racial or economic discrimination” are prohibited by the Fourteenth Amendment) (emphasis supplied); Fortson v. Dorsey, 379 U. S. 433, 439 (an apportionment scheme would be invalid under the Fourteenth Amendment if it “operate[d] to minimize or cancel out the voting strength of racial or political elements of the voting population”) (emphasis supplied).

Gerrymanders may also be used to preserve the current balance of power between political parties, see, e. g., Gaffney v. Cummings, 412 U. S. 735, or to preserve the safe districts of incumbents, cf. Wright v. Rockefeller, 376 U. S. 52. In Gaffney the Court pointed out: “[I]t requires no special genius to recognize the political consequences of drawing a district line along one street rather than another. It is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the political complexion of the area. District lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican, or make a close race likely. Redistricting may pit incumbents against one another or make very difficult the election of the most experienced legislator. The reality is that districting inevitably has and is intended to have substantial political consequences.” 412 U. S., at 753.

Thus, for example, there is little qualitative difference between the motivation behind a religious gerrymander designed to gain votes on the abortion issue and a racial gerrymander designed to gain votes on an economic issue.

As Mr. Justice Douglas wrote in his dissent in Wright v. Rockefeller:

“Racial electoral registers, like religious ones, have no place in a society that honors the Lincoln tradition — ‘of the people, by the people, for the people.’ Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B *89must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on. Cf. Gray v. Sanders, 372 U. S. 368, 379. The racial electoral register system weights votes along one racial line more heavily than it does other votes. That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. Of course race, like religion, plays an important role in the choices which individual voters make from among various candidates. But government has no business designing electoral districts along racial or religious lines.
“When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.” 376 U. S., at 66-67.

See also my dissent in Cousins, supra:

“In my opinion an interpretation of the Constitution which afforded one kind of political protection to blacks and another kind to members of other identifiable groups would itself be invidious. Respect for the citizenry in the black community compels acceptance of the fact that in the long run there is no more certainty that these individuals will vote alike than will individual members of any other ethnic, economic, or social group. The probability of parallel voting fluctuates as the blend of political issues affecting the outcome of an election changes from time to time to emphasize one issue, or a few, rather than others, as dominant. The facts that a political group has its own history, has suffered its own special injustices, and has its own congeries of special political interests, do not make one such group different from any other in the eyes of the law. The members of each go to the polls with equal dignity and with an equal right to be protected from invidious discrimination.” 466 F. 2d, at 852.

In O’Brien the Court described Gomillion as standing “not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional.”

“It is unrealistic, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of a participant in the decisional process. A law conscripting clerics should not be invalidated because an atheist voted for it.” Washington v. Davis, 426 U. S. 229, 253 (Stevens, J., concurring).

For example, if 55% of the voters in an area comprising two districts belong to group A, their interests in electing two representatives would be best served by evenly dividing the voters in two districts, but their inter*92ests in making sure that they elect at least one representative would be served by concentrating a larger majority in one district. See Cousins v. City Council of Chicago, 466 F. 2d, at 855, n. 30 (Stevens, J., dissenting). See also Wright v. Rockefeller, 376 U. S. 52, where the maintenance of racially separate congressional districts was challenged by one group of blacks and supported by another group having the dominant power in the black-controlled district.

I emphasize this point because in my opinion there is a significant difference between a statewide legislative plan that “happens” to use multimember districts only in those areas where they disadvantage discrete minority groups and the use of a generally acceptable municipal form of government that involves the election of commissioners by the *93voters at large. While it is manifest that there is a substantial neutral justification for a municipality’s choice of a commission form of government, it is by no means obvious that an occasional multimember district in a State which typically uses single-member districts can be adequately explained on neutral grounds. Nothing in the Court’s opinion in White v. Regester, 412 U. S. 755, describes any purported neutral explanation for the multimember districts in Bexar and Dallas Counties. In this connection, it should be remembered that Kilgarlin v. Hill, 386 U. S. 120, did not uphold the constitutionality of a “crazy quilt” of single-member and multimember districts; rather, in that case this Court merely upheld the findings by the District Court that the plaintiffs had failed to prove their allegations that the districting plan constituted such a crazy quilt.

Rejection of Mr. Justice Frankfurter’s views in the specific controversy presented by Baker v. Carr, 369 U. S. 186, does not refute the basic wisdom of his call for judicially manageable standards in this area: “Disregard of inherent limits in the effective exercise of the Court’s ‘judicial Power’ not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court’s position as the ultimate organ of ‘the supreme Law of the Land’ in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court’s authority — possessed of neither the purse nor the sword— ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.” Id., at 267 (Frankfurter, J., dissenting).