An In-Depth Criticism of Shaw v. Reno

Katherine M. Perez-Oviedo September, 2025

If I have learned one thing from my semester taking Critical Race Theory, it is that the United States Supreme Court has repeatedly issued decisions that directly impede on remedial efforts to address past racial discrimination.¹ When the question of “ how can we use the law to instill social change? ” is proposed in class discussion, it is difficult to imagine a world in which the Court would support the progressive measures suggested.

When Congress enacted the Voting Rights Act (VRA) of 1965, both the Legislature and the Judiciary, for a moment, were united in their efforts to prohibit states from unconstitutionally abridging the fundamental right to vote of black people and other minority groups.² Even so, in thirty years, the Court essentially barred the explicit use of race in any way when redistricting, even if used for remedial purposes.³

Although the Court did not set this strict presumption against the validity of legislatures’ deliberate use of race when redistricting until Miller v. Johnson , the Court began its shift in jurisprudence with the misplaced decision of Shaw v. Reno . This note serves as an in-depth critique of the Shaw v. Reno opinion. As this note will examine, the Court’s 5-4 decision in Shaw v. Reno treated the plaintiffs’ claim as a valid equal protection cause of action not because there was an injury to minority voters, but because North Carolina clearly had race in mind when drawing its Congressional maps.⁴ In reaching this conclusion, I contend that the Supreme Court abandoned common law precedent that was on point, as well as misconstrued the case law it used to support its holding.

Beginning with an overview of the Voting Rights Act as amended in 1982, as well as the facts of Shaw v. Reno , this note will then criticize the Court’s decision detailing (1) how the Court completely misconstrued its cited precedential support for its fabricated holding, (2) the true precedent that controlled and should have been utilized by the Court, and (3) the resulting colorblind instrument the Court set up and how it limited black people’s voting rights. Finally, this paper will address the aftermath of the decision and how it effectively led to the predominant factor test in Miller v. Johnson .

Despite the existence of the Fourteenth Amendment’s Equal Protection Clause (ratified in 1868) and the Fifteenth Amendment’s protection of the right to vote regardless of race (ratified in 1870), many southern states resisted the Amendments⁵ and continuously denied black people and other minorities access to the polls.⁶ For over half a century,⁷ “[v]irtually all the southern states [had] adopted constitutional provisions requiring literacy tests and the payment of poll taxes as prerequisites of voting.”⁸ Consequently, “these devices resulted in the immediate, nearly total disfranchisement of blacks in the South.”⁹

Although racial minorities challenged barriers before the courts, the Supreme Court would often only strike down the most unmistakable examples of a state’s discriminatory intent.¹⁰ Outside of grandfather clauses, the Court upheld exclusionary devices utilized by southern states such as the poll tax¹¹ and literacy tests as late as 1959.¹² Even in cases where the Court ruled that there was an impermissible denial of the right to vote based on race, states would often adjust their strategy to obtain courts’ approval when reencountered.

For example, in a series of lawsuits known as the White Primary Cases , Texas repeatedly recrafted its effort to exclude black people from primary elections.¹³ In Nixon v. Herndon , the Court ruled that a Texas statute, which explicitly barred black people from participating in Democratic party primary elections, was a “direct and obvious infringement of the Fourteenth [Amendment].”¹⁴ Immediately following this decision, Texas enacted a new statute that authorized political parties through their state executive committee to prescribe the qualifications of its members, including the qualifications of who may participate and vote.¹⁵ Under this authority, the state executive committee of the Democratic party adopted a resolution that limited participation in primary elections to only white democrats and “none other.”¹⁶

Texas’ decision to authorize state executive committees with the discretion to set voting qualifications presented a more complex legal issue for the Supreme Court to consider. Whereas the prior exclusion was a blatant infringement of the Equal Protection Clause because the state itself explicitly excluded black people through statute, the facts of Nixon v. Condon raised the question as to whether members on the state executive committees were restrained by the Fourteenth Amendment as well.¹⁷ The Supreme Court held the state executive committees to be “organs of the state itself” and were therefore required to comply with the Constitution and were prohibited from excluding black voters.¹⁸

Three years later in Grovey v. Townsend , the Court finally ruled for Texas. It held that it was constitutionally permissible for the Democratic party to limit its membership status to white people and to assemble accordingly.¹⁹ Because the Democratic party was not an organ of the state, unlike state executive committee members in Nixon v. Condon , the exclusion did not rest on state action and was thus not subject to Constitutional constraints.²⁰ The decision in Grovey v. Townsend was in effect for nearly ten years before the Court overturned it in Smith v. Allwright .²¹

In 1965, Congress enacted the Voting Rights Act, which was a “manifestation of Congress’ reaction to the abhorrent racial discrimination in voting rights in the United States.”²² This federal law was the first of its kind, and it enforced uniform compliance with the Fourteenth and Fifteenth Amendment in a way in which states had not yet been subject to before. Section 2 and Section 5 were considered the backbone of the Act²³ and subjected to the most litigation.

Section 2 essentially codified the Fifteenth Amendment and served as a “mechanism for bringing voting rights discrimination claims in federal court.”²⁴ In 1965, the language of Section 2 read: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”²⁵

Among other things, minority plaintiffs used Section 2 to bring vote dilution claims. In these claims, plaintiffs argued that a state’s redistricting plan or maintenance of an at-large voting scheme weakened their vote, or maintained the already established inability of minority groups to elect their candidate of choice.²⁶ Rather than targeting explicit policies that denied minority groups access to the polls, the focus shifted to “whether the particular policy impaired the effectiveness of that right to vote.”²⁷

At the beginning, courts were split on how they interpreted Section 2. Some courts required evidence of intentional discrimination to establish a violation, while others only required a discriminatory result.²⁸ Fifteen years after the enactment of the Voting Rights Act of 1965, the Supreme Court launched its first attack on the Act in City of Mobile v. Bolden , where the Court raised the evidentiary burden for plaintiffs to succeed on a Fifteenth Amendment claim, and thus a Section 2 claim,²⁹ by requiring proof of discriminatory intent.³⁰ In Bolden , the city’s three commissioners were elected by the city at large in a winner-take-all fashion.³¹ The Bolden Court focused on the fact that minorities in Mobile were still able to “register and vote without hindrance” and concluded that Alabama had not violated the Fifteenth Amendment.³² “In reaching its conclusion, the Court emphasized that it had never suggested that the Constitution supported a guarantee to proportional representation or that claims based on the ‘discriminatory impact of the statute’ were sufficient to state a vote dilution claim.”³³

Scholars have widely noted “the damaging impact of the [ Bolden ] decision on at-large election challenges throughout the South.”³⁴ For example, in Mississippi alone, district courts employing Bolden’s intent requirement rejected constitutional challenges to at-large voting schemes in two cities³⁵ despite the schemes having “resulted in the total exclusion of black representation on the city councils of both cities and even though there was strong but circumstantial evidence that discriminatory intent had been a factor in the adoption and retention of at-large elections.”³⁶

Congress remedied Bolden’s harsh interpretation with its 1982 Amendment to the Voting Rights Act by adding the results test.³⁷ The results test provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . in a manner which results in a denial or abridgement” of any citizen’s right to vote on account of race.³⁸ A denial of the right to vote is established if,

[B]ased on the totality of circumstances, it is shown that the political processes . . . are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.³⁹

Congress’ addition of the “results test,” codified in Section 2(b), redirected courts’ foci to resulting discriminatory impacts of redistricting measures rather than evidence of a discriminatory purpose.⁴⁰ The results test combated the Supreme Court’s heightened standard for a successful vote dilution claim by making clear that the VRA did not require evidence of a discriminatory purpose.⁴¹ The amendment restored strength to minority voters in their ability to bring a successful vote dilution claim without having to bring such explicit proof that the discrimination they were facing was intentional.⁴² For example, in Mississippi, three cases that were initially lost or dismissed under the Mobile intent standard were subsequently won or settled under the new Section 2 results standard.⁴³

Additionally, Congress supplemented the VRA’s 1982 Amendment with a Senate Report that provided additional information regarding the purpose of the Section 2 amendment and included a list of factors that would aid courts in determining whether there has been an unconstitutional vote dilution.⁴⁴ In the landmark case of Thornburg v. Gingles , the Court “interpreted the amended language of section 2 to require three preconditions for establishing a claim.”⁴⁵ While the Court found many of the factors listed in the Senate Report to be relevant to a claim of vote dilution, the Gingles Court set three particular facts to operate as a threshold requirement for any vote dilution claim to proceed.⁴⁶ What came to be known as the “ Gingles preconditions” were the requirements that:

First, the minority must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. . . . Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate.⁴⁷

These preconditions served to demonstrate that a Section 2 plaintiff had a legitimate claim that a state was effectively diluting the minority group’s political strength and hindering the minority group’s ability to elect their preferred candidate of choice.⁴⁸ Once a plaintiff established the three Gingles preconditions, courts could then consider circumstantial evidence in the totality of circumstances to determine whether there is a “basis for the inference of discriminatory intent.”⁴⁹

Section 5 of the Voting Rights Act established a preclearance requirement for jurisdictions covered under Section 4(b) of the Act.⁵⁰ The preclearance requirement effectively targeted southern jurisdictions that were guilty of subjecting “minority voters to suppression tactics that yielded substantial disparities between white and black voter registration and turnout.”⁵¹ These jurisdictions were now required to “obtain federal approval, either from the Department of Justice or a special three-judge district court in Washington, D.C., before making any change in their laws governing voting.”⁵² In Beer v. United States , the Court established the “retrogressive” test, which required states to “enhance or leave unchanged the current electoral position of minorities.”⁵³ Under Section 5, the federal government could ensure as a precautionary measure that “no votingprocedure 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.”⁵⁴ So long as a state complied with the standard of non-retrogression as set out in Beer , the state would be deemed to have complied with Section 5 unless the reapportionment itself unconstitutionally discriminated against minorities.⁵⁵

Shaw v. Reno (hereinafter, Shaw ) was an example of Section 5’s preclearance requirement in action and reflected the tension between a state’s compliance with the Voting Rights Act — an Act aimed to protect and advance the voting rights of minority groups — and what the Court believed to be a violation of equal protection principles of the Fourteenth Amendment.⁵⁶ At issue in Shaw was North Carolina’s redistricting plan, which the state legislature had redrawn to include its additional seat in the United States House of Representatives following the 1990 census.⁵⁷ Because some of North Carolina’s counties fell within Section 4(b)’s coverage formula, the State submitted its legislative redistricting plan to the Attorney General for preclearance pursuant to Section 5 of the Voting Rights Act.⁵⁸ The Attorney General rejected North Carolina’s redistricting plan because it determined that the legislature could have created an additional majority-minority district in the south-central to southeastern region “to give effect to black and Native American voting strength in this area.”⁵⁹ In response to the Attorney General’s initial denial, the legislature created a revised redistricting plan that included a second majority-black district whose irregular shape became the basis of the entire majority opinion.⁶⁰

An important detail regarding the Attorney General’s objection to North Carolina’s original redistricting map was that the map had complied with the non-retrogression principle set out in Beer v. United States .⁶¹ The first redistricting map included a singular majority-minority district, which was already an “improvement in the status and power of black voters in the statewide apportionment scheme” in comparison to its previous map that had no majority-minority districts.⁶² The reason for the Attorney General’s objection is something that the Court hinted at in Shaw but more directly addressed in the cases that followed;⁶³ that is, the Department of Justice was acting in accordance with its own agenda of maximizing the quantity of majority-black districts.⁶⁴ However, even with the Department of Justice’s consistent behavior of endorsing a maximization policy when approving districting maps pursuant to Section 5’s preclearance authority, the Department of Justice reasoned that North Carolina failed to establish a second black majority district for “pretextual reasons.”⁶⁵

The voting age population of North Carolina at the time of Shaw was approximately 78% white and 20% black.⁶⁶ The black population in North Carolina was “relatively dispersed”⁶⁷ with black people constating “a majority of the general population in only 5 of the State’s 100 counties.”⁶⁸ The dispersal of black residents throughout the state, rather than their concentration in condensed communities, was a reason why the second majority-black district was irregularly shape. Still, the Attorney General felt that North Carolina could create this second majorityminority district “using boundary lines ‘no more irregular those found elsewhere in the proposed plan.’”⁶⁹ Even with the addition of a second majority-black district, white residents still held a voting majority in a disproportionate number of voting districts.⁷⁰

When North Carolina enacted its revised redistricting plan, it did not place the second district in the south-central to southeastern region of the state, but in the north-central region instead.⁷¹ The Court described each majority-minority district’s shape in dramatic detail, quoting the Wall Street Journal’s description of District 1 as looking like a “bug splattered on a windshield.”⁷² The second district, District 12, was drawn for 160 miles along the I–85 corridor in the north-central region.⁷³ The district extended in a “snakelike fashion” to ensure it included enough black residents to satisfy a majority-minority district. Again, the Court emphasized its distaste for the district’s shape, this time quoting the Washington Post’s use of a legislator’s remark that “if you drove down the interstate with both car doors open, you’d kill most of the people in the district.”⁷⁴

White plaintiffs challenged the congressional districting scheme, arguing that North Carolina’s deliberate creation of two majority-minority districts without regard for typical districting considerations, such as “compactness, contiguousness, geographical boundaries, or political subdivisions,” was an unconstitutional “racial gerrymander,” and thus a violation of the Fourteenth Amendment.⁷⁵ The plaintiffs’ racial gerrymander claim rested on the argument that North Carolina’s deliberate drawing of congressional districts along racial lines to ensure the election of two black representatives was a violation of the Fourteenth Amendment itself.⁷⁶ The plaintiffs’ allegation of an unconstitutional racial gerrymander was not the first of its kind, as the District Court originally dismissed the complaint finding that United Jewish Organizations of Williamsburgh, Inc. v. Carey ( UJO ) barred the plaintiffs’ claim.⁷⁷

In UJO , the Supreme Court rejected an Equal Protection Clause claim brought by a group of white plaintiffs against a New York redistricting scheme because the scheme did not “minimize or unfairly cancel out white voting strength.”⁷⁸ The plaintiffs sued on behalf of the Hasidic Jewish community, alleging that New York’s reapportionment plan diluted their franchise “solely for the purpose of achieving a racial quota” in violation of the Fourteenth Amendment.⁷⁹ The UJO Court granted certiorari to the lower court’s question: “[W]hether a State could use racial considerations in drawing lines in an effort to secure the Attorney General’s approval under the Voting Rights Act.”⁸⁰ The Court noted that although there was “no doubt” that New York “deliberately used race in a purposeful manner,”⁸¹ it recognized that “reapportionment cases would often necessitate the use of racial considerations in drawing district lines.”⁸²

The Court rejected the plaintiffs’ argument that the Constitution prohibits states from deliberately using race in order to ensure that its reapportionment complies with Section 5.⁸³ It reasoned that because there was no injury to the plaintiffs in UJO , or more specifically, because “there was no fencing out of the white population from participation in the political processes of the county,” and because “the plan did not minimize or unfairly cancel out white voting strength,” New York had not violated the Fourteenth Amendment.⁸⁴ In this 7-1 decision, Chief Justice Burger’s dissent labeled the facts in UJO as an unconstitutional racial gerrymander,⁸⁵ but he was alone in this analysis.

Despite UJO and Shaw sharing the common fact that neither redistricting map had an actual discriminatory effect, the Shaw Court focused unwaveringly on the majority-minority districts’ irregular shapes. Because the redistricting plan was “so irrational on its face” that it could only be rationally viewed “as an effort to segregate voters into separate voting districts because of their race,” the Court held the scheme to be a violation of the Fourteenth Amendment’s Equal Protection Clause unless North Carolina could demonstrate on remand that the plan was narrowly tailored to further a compelling governmental interest.⁸⁶

The Shaw Court embraced “colorblind” principles that even when taken as true, still should not have amounted to an Equal Protection Clause violation.⁸⁷ Analyzing racial issues through a colorblind lens, as the Court did in Shaw , is a tactic for the highest Court to ignore societal history, legislative history, and the realities of political systems in the United States. This tactic is evidently clear through the strong language and reasoning used throughout the majority opinion to justify an argument that, if not protected by its blatant walls of ignorance, would have completely collapsed on itself.

The Court in Shaw announced its clear bias against the Voting Rights Act when it labeled the Voting Rights Act of 1965 as Congress’ “dramatic” and “severe”⁸⁸ response to the everlasting systemic racial discrimination happening within southern states. Meanwhile, some commentators today consider the VRA to be the most effective piece of civil rights legislation ever created.⁸⁹ The most “dramatic” example of the Voting Rights Act’s immediate impact can be seen through Mississippi’s sizable jump in its black voting registration rates from 6.7% to 59.4% within the first three years of the Act’s passage.⁹⁰

The following section discusses the three main precedents the Shaw Court relied upon in holding that the facts triggered a Fourteenth Amendment Equal Protection analysis: Guinn v. United States , Gomillion v. Lightfoot , and Wright v. Rockefeller . I discuss the ways in which the majority either ignored, misconstrued, or molded its cited precedent to fit its ultimate holding, which was one that effectively created a new Fourteenth Amendment claim for Section 2 plaintiffs and could specifically be used by nonminority voters.

a. First precedent: Guinn v. United States

Justice O’Connor, writing for the Court, viewed North Carolina’s method of drawing a map that “gobble[d]” up enough black residents to create a majority-minority district as resembling one of the most “ egregious racial gerrymanders of the past.”⁹¹ To support this statement, the Court cited to Guinn v. United States , which involved Oklahoma’s use of a “grandfather clause” in its state Constitution that exempted white voters from having to pass a literacy test to vote in congressional elections.⁹² The grandfather clause limited the exemption to white voters by specifically applying it only to those who were entitled (or their lineal descendants were entitled) to vote on a date preceding the Fifteenth Amendment.⁹³ In effect, all black males were required to pass a literary test to gain access to the franchise, whereas white males were exempt.⁹⁴

Grandfather clauses were an extremely effective tool in disenfranchising minority groups along clear-cut racial lines. As addressed by the Court in South Carolina v. Katzenbach , these laws were “based on the fact that as of 1890 in each of the named States,⁹⁵ more than two-thirds of the adult [black population] were illiterate while less than one-quarter of the adult whites were unable to read or write.”⁹⁶ The literacy tests also were a pretext for a true abuse of administration. Black people were required to pass difficult versions without the slightest error.⁹⁷ In contrast white people were often excused from literacy tests altogether, such as the case in Guinn , or were administered “easy versions, [] received extensive help from voting officials, and [were] registered despite serious errors in their answers.”⁹⁸

In Guinn , the Court refused to rule on the constitutionality of literacy tests themselves,⁹⁹ and they remained constitutionally permissible and prominent until Congress affirmatively banned them nationwide with the 1970 Amendment to the VRA.¹⁰⁰ However, the Court still held Oklahoma’s Constitutional provision as a whole to be invalid, as it violated the Fifteenth Amendment.¹⁰¹

Two points can be drawn from Guinn ’s holding. First, the Court struck down Oklahoma’s grandfather clause because it was a direct attempt to sidestep compliance with the Fifteenth Amendment.¹⁰² Although the language of the grandfather clause itself did not explicitly deny citizens the right to vote on account of race, the “standard itself inherently [brought] that result into existence” because the exemption date was one that preceded the Fifteenth Amendment.¹⁰³ Second, the combined effect of (1) Oklahoma’s grandfather clause, which classified groups based on race, and (2) the resulting racially-exclusive requirement that only black people had to pass a literacy test to vote, was a discrimination tactic that denied equal protection under the law.¹⁰⁴

The Shaw Court’s finding that North Carolina’s racial “classifications” offended equal protection principles without any showing of injury to white voters demonstrates the Court’s adherence to colorblind principles, even if this finding required misinterpreting precedent.¹⁰⁵ The Shaw majority erroneously ignored that the exclusion of black voters from the franchise was central to Guinn ’s holding and instead, focused its attention on state action that classifies voters on the basis of race. Whereas Justice White, writing for the dissent, described Guinn as a “direct and outright deprivation of the right to vote,” and was therefore not implicated by the facts of Shaw ,¹⁰⁶ the majority extracted a much more simplistic conclusion: that the grandfather clause in Guinn was invalid because “on its face, it could not be explained on grounds other than race.”¹⁰⁷ Not only is this extracted principle extremely superficial, but it also does not fit when applied to the facts of Shaw . Frank R. Parker described the Court’s error perfectly:

In its description of the North Carolina plan, the Shaw Court attempted to shoehorn the challenged districts into the framework of these cases by overblown rhetoric that employed the language of racial segregation, but the facts of Shaw show that the case does not fit. The Court described the challenged plan as “an effort to segregate the races for purposes of voting,” “political apartheid,” a “racial gerrymander,” and “an effort to separate voters into different districts on the basis of race,”¹⁰⁸ but in fact none of the challenged districts were racially segregated in any normal sense of the term.¹⁰⁹

The facts of Shaw did not support the majority’s analogy to the facts of Guinn because the effect of North Carolina’s redistricting plan was not to segregate voters based on racial classifications. In Shaw , every congressional district was comprised of both black and white voters.¹¹⁰ In fact, the two contested majority-minority districts were the closest in racial composition percentagewise, with District 1 having a white voting age population (WVAP) of 45.49% and a black voting age population (BVAP) of 53.40% and District 12 having a similar WVAP of 45.21% and a BVAP of 53.34%.¹¹¹ Compare this with District 11’s 85.64% difference in racial composition (92.01% WVAP and 6.37% BVAP) or District 6’s 84.82% difference in racial composition (91.87% WVAP and 7.05% BVAP).¹¹²

The composition of these districts reflects the flawed logic in the Shaw majority. In Guinn , the unsubtle date of Oklahoma’s grandfather clause reflected a pure intention to racially discriminate against minorities. No other inference could be made as the result left black people as the only group to be excluded from the franchise. North Carolina’s district map may have reflected intentions to include or exclude voters in districts based on race, but if the map reflected “an effort to separate voters into different districts on the basis of race,”¹¹³ then by this logic, District 6 or District 11’s drastic differences in racial compositions may more accurately support this argument.

More notably, there was no injury to the white plaintiffs.¹¹⁴ Whites still represented a majority in a disproportionate number of districts,¹¹⁵ and even in the majority-minority districts, there was no requirement for a black representative to be elected. The Department of Justice’s instruction to create a second majority-minority district was simply a push to give black voters a chance at electing their preferred candidate of choice in two districts “on the same basis as the white voters in the ten majority-white districts,”¹¹⁶ and such efforts proved effective as Justice White noted in his dissent.¹¹⁷

The difference between the increased electoral power of minority groups resulting from the additional majority-minority districts in Shaw and the disenfranchisement resulting from Oklahoma’s combination of a grandfather clause and literacy test was of no relevance to the Shaw Court. Rather, it was simply the conscious racial classification of voters that proved to be the injury valued by Shaw .¹¹⁸

Furthermore, the Shaw majority erroneously ignored that it was Oklahoma’s constitutional sidestepping that resulted in Guinn ’s striking of the grandfather clause. Guinn ’s outcome rested on the fact that Oklahoma’s grandfather clause left no other reasonable interpretation but that the purpose of the state amendment was to strip away the rights the Fifteenth Amendment protected.¹¹⁹ Both the purpose and effect of the state amendment was to avoid compliance with the United States Constitution, which led the Supreme Court to strike it down as unconstitutional.¹²⁰

Meanwhile, in Shaw , rather than sidestepping a constitutional amendment to strip minorities of their protected rights, North Carolina’s intentional inclusion of two majority-minority districts was in response to the Attorney General’s objection to North Carolina’s original proposed plan.¹²¹ North Carolina adopted its plan pursuant to federal law in an effort to increase black people’s political influence in North Carolina.¹²² This purpose was another material difference between Guinn ’s holding and rationale as applied to the facts of Shaw .

Compliance with a Congressional act and executive orders from the Department of Justice is never a guaranteed shield against constitutional obligations. However, it is notable that the purpose and effect of North Carolina’s redistricting map at issue in Shaw was not to sidestep the Constitution, unlike the grandfather clause and literacy test combination in Guinn . Furthermore, the Attorney General’s objection to North Carolina’s plan, and even its agenda towards maximalization, aligned with the Voting Rights Act’s strong remedial efforts.¹²³ The Department of Justice was entitled to at least some agency deference in accordance with the Chevron Doctrine.¹²⁴ But instead, it was met with the Court gearing up to impose strict scrutiny¹²⁵ that would completely hinder its power.¹²⁶

The State Appellees pled justifications, such as compliance with Section 2,¹²⁷ as well the state’s compelling interest in eradicating the effects of past racial discrimination.¹²⁸ These justifications were aligned with the purpose of the Act, and the Court had the opportunity not only to defer to the Department of Justice’s interpretation of the Act, but also to credit the validity of these asserted compelling interests for the courts on remand.¹²⁹ The Court did no such thing and instead highlighted the argument’s weaknesses, including the fact that only three justices in UJO concluded that that “race-based districting, as a response to racially polarized voting, is constitutionally permissible only when the State ‘employ[s] sound districting principles,’ and only when the affected racial group’s ‘residential patterns afford the opportunity of creating districts in which they will be in the majority.’”¹³⁰ North Carolina’s reasons for using race should have counteracted the majority’s presumption of unconstitutionality. Notwithstanding the elimination of racial elements, the progressive efforts shared between North Carolina and Congress were materially and qualitatively different than Oklahoma’s deceitful attempt to avoid Constitutional compliance without having any other reasonable explanation.

b. Second precedent: Gomillion v. Lightfoot

The majority next cited Gomillion v. Lightfoot to support its developing argument that a state’s conscious use of race when drawing district lines automatically triggers an Equal Protection Clause analysis.¹³¹ In Gomillion , Alabama passed an act that redefined Tuskegee’s city boundaries to an “uncouth twenty-eight-sided figure,”¹³² and in doing so, removed every black voter except four or five (of the 400 total) from the city lines.¹³³ This strategic and deliberate drawing effectively prevented all (except four or five) black voters and not a single white voter from voting in its municipal elections.¹³⁴

The black plaintiffs brought challenges under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, as well as the Fifteenth Amendment.¹³⁵ The Court ultimately allowed the case to proceed as a challenge under the Fifteenth Amendment because a legislature cannot “single[] out a readily isolated segment of a racial minority for special discriminatory treatment” without violating the Fifteenth Amendment.¹³⁶

Like in Guinn , the Gomillion Court found that if the plaintiffs’ allegations were proven as true, Alabama had (1) made deliberate racial classifications and (2) stripped the voting rights of only the minority voters.¹³⁷ Although the Court in Gomillion did not mention Guinn , the two-step rationale is analogous to the two-step effect of Guinn ’s grandfather clause and literacy test. First, in both cases, each state racially classified voters when it created legislation as in Guinn or drew its redistricting map as in Gomillion . It is worth mentioning that racial segregation is materially different than evidence supporting that race was a conscious consideration, as there was no true racial segregation in Shaw as reflected by the racial composition of Districts 1 and 12.¹³⁸ Second, once the voters were racially segregated, each state injured the minority group (and only the minority group) by infringing upon the minority group’s right to vote. Like the first step, this second step was also not present in the facts of Shaw , as not one voter lost her right to vote. The majority in Shaw cited to both Guinn and Gomillion as support for its holding, yet the most important and relevant facts to the Court’s holdings in these cases were nowhere to be found in Shaw .

Instead, the Shaw majority extracted a superficial principle from Gomillion to support its colorblind holding, and it also selectively picked Justice Whittaker’s concurrence to make the jurisprudential leap from the Fifteenth Amendment to the Fourteenth Amendment. In Gomillion , Justice Whittaker’s concurrence argued that that the true violation lied within the Fourteenth Amendment, rather than the Fifteenth Amendment.¹³⁹ Justice Whittaker wrote, and the Shaw Court noted, that the “unlawful segregation of races of citizens” is in violation of the Equal Protection Clause of the Fourteenth Amendment because the black voters who were fenced out from participating in the municipal elections still all shared the same voting privileges amongst each other.¹⁴⁰ On the surface, this reasoning may seem like it has merit and aligns with the facts of Shaw , but colorblind principles often do.

Unlike congressional elections, when citizens are fenced out of municipal boundary lines, those citizens are not necessarily guaranteed to be incorporated into another city’s boundaries. “Until the mid-20th century, racialized municipal processes (racially restrictive covenants, redlining, black codes, block busting, and racial steering) segregated people of color, many into unincorporated communities.”¹⁴¹ Consequently, these minority groups were not only deprived of the municipal services themselves, but were also deprived of their right to participate in the democratic process that directly impacts the people within the city’s lines, thus leaving them forgotten altogether.¹⁴² Some challenges that do not define, but characterize unincorporated areas include lack of basic infrastructure, overconcentration of undesirable land uses like freeways and utility plants, and health inequities.¹⁴³

The majority in Gomillion recognized that losing a right to vote in Tuskegee’s city elections meant losing out on municipal benefits.¹⁴⁴ Furthermore, the Gomillion Court recognized that black voters were not only losing their right to vote, but that the redrawing of Tuskegee’s boundary lines was incidental to the Alabama Legislature’s true motive to disenfranchise exclusively black voters.¹⁴⁵ Justice Whittaker’s argument that the excluded black voters all “enjoy[ed] the same voting privileges,”¹⁴⁶ or more accurately the lack thereof, did not change the fact that the minority group in Gomillion suffered the injury of disenfranchisement and segregation.

The Shaw Court again extracted a superficial principle that conveniently ignored the minority group’s true stakes that were at risk when getting excluded the franchise. The Shaw Court concluded that Gomillion supported the proposition that “district lines obviously drawn for the purpose of separating voters by race require[d] careful scrutiny under the Equal Protection Clause regardless of the motivations underlying their adoption .”¹⁴⁷ What the Shaw majority failed to acknowledge was that it was the “fencing out” of black citizens from the municipal benefits that made the segregation of races “unlawful” in the first place.¹⁴⁸

Nonetheless, despite the Gomillion Court’s clear focal point having been centered on the unconstitutional effect of the legislation, and that effect serving as another example of a state’s resistance against accepting black people in the franchise, the Shaw court instead found truth in the idea that any instance of race-conscious grouping should be carefully scrutinized.¹⁴⁹ In doing so, the Court rewrote what were unmistakable examples of intentional discrimination against black people—that of course, had no other justification but to exclude black voters because that was precisely the purpose of the legislation or redistricting—to be an instrument accessible in any case where white voters felt threatened by black people’s increasing political power.

c. Third precedent: Wright v. Rockefeller

Justice O’Connor continued developing her argument by describing how Gomillion ’s holding extended to the Court’s reasoning in Wright v. Rockefeller .¹⁵⁰ In Wright , plaintiffs challenged New York’s congressional apportionment statute that packed minority voters into its 17th Congressional District but excluded minority voters from the 18th, 19th, and 20th Congressional Districts.¹⁵¹ The Supreme Court affirmed the District Court’s holding that the plaintiffs failed to meet their evidentiary burden of showing that New York was motivated by racial considerations when creating its reapportionment.¹⁵² The evidence the plaintiffs’ presented supported more than one inference that was equally or more persuasive than that New York was motivated by race.¹⁵³

The fact that the Court in Wright found inferences other than racial motivation to be equally convincing for its reapportionment of its districts is the controlling fact that distinguishes it from cases like Guinn and Gomillion . In Guinn , the Court could not reasonably draw any other conclusion except that Oklahoma intended to discriminate against minority voters, as the statute’s exemption was specifically limited to those who could vote prior to the enactment of the Fifteenth Amendment.¹⁵⁴ In the Guinn ’s Court’s words, there seemed to be “no escape from the conclusion” that the purpose was to disregard the prohibition of the Fifteenth Amendment.¹⁵⁵ Similarly, in Gomillion , the undeniable evidence of removing not a single white voter but excluding all but four (or five) black voters from the city lines produced an “irresistible” conclusion that the legislation was “solely concerned” with “fencing [black] citizens out of town” to deprive them of their right to vote.¹⁵⁶ In Wright v. Rockefeller , there was no comparable “smoking gun” evidence.

Justice O’Connor used the lack of such evidence to demonstrate the difficulty in determining whether state racial classifications are intentional.¹⁵⁷ She then concluded that this difficulty of proof “does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race.”¹⁵⁸ This conclusion rested on the underlying assumption that a racial gerrymander was in fact established. As discussed, if the Supreme Court had followed the controlling precedent of UJO , the Shaw plaintiffs would not have had a valid racial gerrymander claim because there was no evidence of an injury to white voters. As Justice White noted in his dissent, “I fail to see how a decision based on a failure to establish discriminatory intent can support the inference that is unnecessary to prove discriminatory effect .”¹⁵⁹

d. The Norms in Congressional Redistricting

Throughout the Shaw opinion, the Court emphasized that reapportionment is an area in which “appearances do matter,”¹⁶⁰ and as such, the unusual districts’ shapes survived a motion to dismiss as a violation of the Fourteenth Amendment.¹⁶¹ Within this discussion, the Court simultaneously disregarded that the intention of the Voting Rights Act was to remedy past racial discrimination and instead, prioritized a colorblind reading of the Fourteenth Amendment. The Court reasoned that congregating minority voters who are “otherwise widely separated by geographical and political boundaries . . . who may have little in common with one another” and only share the similarity of skin color “bears an uncomfortable resemblance to political apartheid.”¹⁶² The Court continued: “It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”¹⁶³ What Justice O’Connor failed to acknowledge with this analysis is encapsulated by the second Gingles precondition: the minority group must be able to show that it is politically cohesive.¹⁶⁴ A minority group’s successful demonstration that it votes as a bloc should assuage the Court’s anxieties around assuming that people of the same race will prefer the same candidate at the polls despite being unique individuals who are geographically separated.

The above quote describes the “injury” the Shaw Court sought to protect against. The Court prioritized the more conceptual harm of grouping people on the basis of race and, in turn, disregarded the fact that racial minorities were still suffering the harms of past racial discrimination, especially in electoral influence, as reflected by North Carolina’s disproportionate lack of black congressional representatives prior to the redistricting at issue.¹⁶⁵ The creation of majority-minority districts had proven to be an effective means for black and other minority voters to elect their candidates of choice,¹⁶⁶ which was Congress’s exact purpose for designing the remedial efforts contained in Section 2 and Section 5 of the Voting Rights Act.¹⁶⁷ As already discussed, such deliberate efforts had been upheld time and time again by the Court,¹⁶⁸ but the Shaw Court decided to end that line of precedent to create a new one that restrained such efforts with the hard shackles of strict scrutiny.

Justice Souter’s dissent noted how electoral districting “calls for decisions that nearly always require some consideration of race for legitimate reasons where there is a racially mixed population.”¹⁶⁹ He correctly noted that,

As long as members of racial groups have the commonality of interest implicit in our ability to talk about concepts like ‘minority voting strength,’ and ‘dilution of minority votes, and as long as racial bloc voting takes place, legislators will have to take race into account in order to avoid dilution of minority voting strength in the districting plans they adopt. One need look no further than the Voting Rights Act to understand that this may be required, and we have held that race may constitutionally be taken into account in order to comply with that Act.¹⁷⁰

The Court has reviewed states’ departures from traditional redistricting principles¹⁷¹ in many challenges to congressional redistricting maps, but it had always analyzed a failure to adhere to those principles in the broader context of how the minority group’s voting strength to elect their preferred candidate of choice was diluted.¹⁷² Furthermore, the majority in Shaw derived its definition of a racial gerrymander claim from Davis v. Bandemer ,¹⁷³ in which Justice Powell stated that “ gerrymandering is ‘the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes.’”¹⁷⁴ Justice Powell clarified that a “gerrymandering violates the Equal Protection Clause only when the redistricting plan serves ‘no purpose other than to favor one segment—whether racial, ethnic, religious, economic, or political—that may occupy a position of strength at a particular time, or to disadvantage a politically weak segment of the community.”¹⁷⁵ Justice O’Connor conveniently omitted this portion of Justice Powell’s rule that specifically addressed the racial gerrymander claim that the Shaw plaintiffs presented.¹⁷⁶

The Shaw Court’s decision to part with its precedent rested on North Carolina’s failure to adhere to traditional redistrict principles, but adherence to traditional redistricting principles had never been held to be an essential characteristic for congressional maps.¹⁷⁷ States had always been free to draw district lines in whichever fashion they chose, so long as they did so constitutionally. As Justice White noted in his dissent, if two districts were drawn on race-based grounds, “one does not become more injurious than the other simply by virtue of being snakelike, at least so far as the Constitution is concerned and absent any evidence of differential racial impact.”¹⁷⁸ In fact, just as nonadherence to traditional redistricting principles do not always reflect a valid racial gerrymander claim (as should have been the case in Shaw ), some cases have proven to reveal a discriminatory racial gerrymander despite adhering to traditional redistricting principles.¹⁷⁹

The Supreme Court’s decision to treat non-compact and irregularly shaped districting maps as the touchstone for a valid racial gerrymander claim that triggers a Fourteenth Amendment analysis not only strayed from common law precedent,¹⁸⁰ but it was also an unreliable analytical pathway for cases going forward.¹⁸¹ As Frank R. Parker anticipated back in 1995, the Shaw majority opinion left lower courts with a “vague and subjective ‘I know it when I see it’ test that provide[d] little guidance for the lower courts concerning what district shapes violate this new standard, little protection for minority rights, and great risk to the advances in minority representation.”¹⁸² This note further addresses this point in the last two sections: the Shaw decision in effect and post- Shaw jurisprudence.

Until this case, the facts of Shaw would not have presented a constitutional claim.¹⁸³ The Shaw Court, in its reasoning, parted ways with traditional Equal Protection voting rights claims and ignored the precedent that was on point. The Court justified such deviations by focusing unequivocally on the irregular shapes of North Carolina’s majorityminority districts.¹⁸⁴

Before Shaw , the Court had only recognized two kinds of voting practices that gave rise to a valid constitutional claim. These included either “direct and outright deprivation[s] of the right to vote” through mechanisms such as poll taxes or literacy tests, or instances of vote dilution.¹⁸⁵ The former was not applicable to Shaw for obvious reasons, as North Carolina did not strip anyone of their right to vote. For the latter, vote dilution claims were brought under Section 2 of the Voting Rights Act. As the results test laid out, for there to be a Section 2 violation, the VRA required there be “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”¹⁸⁶ In other words, a racial group must have experienced a political injury from the reapportionment plan, which there was no cognizable injury apparent in the case of Shaw . White people remained a voting majority in a disproportionate number of congressional districts¹⁸⁷ and there was simply no claim from the white plaintiffs that their votes were unconstitutionally diluted.¹⁸⁸ The fact that Shaw did not fit within either of these established voting rights claims should have been sufficient grounds to dismiss the complaint.¹⁸⁹

In addition to the Court abandoning traditional voting rights constitutional claims and the statutory protections of the Voting Rights Act, the Court abandoned common law precedent as well. As the District Court and the Shaw dissenters contended, UJO should have controlled the Shaw decision,¹⁹⁰ as the issue was squarely on point. Just as New York’s reapportionment plan in UJO did not have a discriminatory effect on white voters, neither did North Carolina’s in Shaw .

Therefore, the issue of a state’s deliberate use of race had already been held to be constitutionally permissible in UJO , so long as there was no injury to a racial group.¹⁹¹ Nonetheless, the Shaw Court marked the distinguishing factor between these two cases to be the fact that North Carolina’s reapportionment plan was “so irrational on its face that it immediately offend[ed] principles of racial equality.”¹⁹² However, the “supporting precedent” the majority cited did not actually support this idea. Without an actual injury to a racial group, “race-conscious redistricting that ‘segregates’ by drawing odd-shaped lines is qualitatively different from race-conscious redistricting that affects groups in some other way.”¹⁹³

In summary, the Shaw Court invented, manufactured, and fabricated this constitutional claim by dwelling on the shape of North Carolina’s districts and disregarding the rationales behind all the cited precedent as well as the remedial intent behind the Voting Rights Act, Fourteenth, and Fifteenth Amendment. The Court found North Carolina’s way of collecting and grouping black voters into an unconventionally shaped Congressional District mirrored the kind of harmful stereotypes that Brown v. Board of Education sought to dismantle.¹⁹⁴ The Court confidently laid down this colorblind dicta despite the actual evidence of racial bloc voting within the state and despite North Carolina’s explicit purpose of increasing minority groups’ voting strength to eradicate the effects of past racial discrimination.¹⁹⁵ Surely, the Equal Protection Clause would not stand in the way of having this become reality, but the Shaw Court held otherwise.¹⁹⁶ As Justice Blackmun wrote in his dissent, “It is particularly ironic that the case in which today’s majority chooses to abandon settled law and to recognize for the first time this ‘analytically distinct’ constitutional claim, [was] a challenge by white voters to the plan under which North Carolina has sent black representatives to Congress for the first time since Reconstruction.”¹⁹⁷

In part IV of the Shaw opinion, the Court effectively set up a wall that forbid states from achieving any more than the bare minimum when implementing remedial political redistricting efforts. This wall was eventually not limited to cases of irregularly shaped districting plans, but instead was applied to any claim with evidence that race served as the “predominant factor” in the drawing of district lines.¹⁹⁸ In effect, any time a plaintiff challenged a state’s redistricting, and that state used race as a “predominant factor,” the state may be required to demonstrate that the redistricting plan was narrowly tailored to comply with the Voting Rights Act. States often failed to satisfy strict scrutiny when asserting compliance with the VRA as its compelling interest.¹⁹⁹ Therefore, what once failed to even reach the threshold of an equal protection violation turned into its own unique constitutional claim that severely restricted the aims of the Voting Rights Act.²⁰⁰

When setting strict scrutiny as the appropriate standard for the case on remand, the Shaw Court made clear that “courts must bear in mind the difference between what the law permits and what it requires.”²⁰¹ Because both Section 2 and Section 5 already had established common law standards,²⁰² the Court discussed how “narrowly tailored means” would function if compliance with either section of the Voting Rights Act was asserted as a compelling state interest. For Section 5, the Court asserted that “a reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression.”²⁰³ The Shaw plaintiffs argued that North Carolina’s majority-minority districts could not have been required by Section 2 because North Carolina’s black population was too dispersed and was not politically cohesive.²⁰⁴ They also argued that because there were already three black elected officials, the white majority were willing to vote for black candidates,²⁰⁵ which goes against the third Gingles precondition.²⁰⁶ The Court noted these arguments, despite them not having been developed, and that they remained open for consideration on remand.²⁰⁷

By employing strict scrutiny, the Court set severely restrictive limitations on both the Voting Rights Act and remedial efforts in general. For example, in regard to Section 5’s non-retrogression principle, if a State had two majority-minority districts, the only way a redistricting plan would be narrowly tailored to comply with Section 5 is if the new plan had two or three majority-minority districts. Anything more than three majorityminority districts would no longer be considered reasonably necessary to avoid retrogression. Consequently, remedial efforts, such as maximalization efforts aimed at increasing minority groups’ political strength were barred from being implemented.²⁰⁸ The Court set a wall that would only permit nothing more than minimal progress.

Within this same discussion, the Court not only set a wall that forbid states from achieving any more than the bare minimum in remedial efforts, but it also essentially directed the lower court to find that whatever North Carolina did in this case was too much. Justice White in his dissent acknowledged this fact, as he saw no reason to remand at all, because if he were to accept strict scrutiny as the appropriate standard, North Carolina satisfied it.²⁰⁹ In fact, on remand, the District Court ruled in favor of North Carolina, holding that North Carolina satisfied strict scrutiny in its compliance with the Voting Rights Act.²¹⁰ When the case eventually returned to the Supreme Court ( Shaw II ), the Court finally ruled that North Carolina’s bizarrely-shaped district was unconstitutional because it was not narrowly tailored to comply with Voting Rights Act’s Section 2 nor 5.²¹¹

Thus, in Shaw II , the Supreme Court finally put North Carolina’s redistricting plan behind the walls it had effectively set up in Shaw. With respect to Section 5, the Court found that despite the Attorney General’s objection to North Carolina’s proposed districting plan, a “correct reading” of Section 5 did not require a second majority-minority district, and “therefore compliance with Section 5 could not justify race-based districting.”²¹² Because North Carolina’s original district proposal created its first majority-black district, the creation of a second majority-black districting went beyond what the Shaw Court set to permit.²¹³ Shaw II reinforced the Court’s true intention of limiting the Voting Rights Act’s scope by once again explicitly rejecting efforts that maximized minority-group’s electoral voting strength through the creation of majority-minority districts.²¹⁴

With respect to Section 2, the Court struck down North Carolina’s districting plan because North Carolina could not prove the Gingles preconditions for vote dilution cases.²¹⁵ Specifically, because the minority group was not geographically compact in the area of the District 12, there could be no claim that the minority group’s votes would have been diluted if not for the creation of the second majority-minority district.²¹⁶ By mandating that states comply with this reversed Section 2 analysis to prevail on a race-conscious districting effort, states with a relatively dispersed black population like North Carolina²¹⁷ could no longer find creative ways to draw majority-minority districts.²¹⁸ The Gingles preconditions had become required not just for vote-dilution claims that were typically brought by minority voters, but also for states to satisfy anytime a plan was challenged for increasing its minority population’s collective voting strength through the intentional creation of majority-minority districts.²¹⁹

In Shaw , the Court remanded the case for the District Court to determine whether North Carolina’s plan was narrowly tailored to further a compelling governmental interest.²²⁰ Before the case returned to the Supreme Court in 1996 in Shaw II , the Court expanded Shaw ’s applicability in its 1995 decision of Miller v. Johnson .²²¹

In Miller , Georgia submitted its first redistricting plan to the Attorney General following the 1990 Census that included two majority-minority districts, which was an increase from its previous map that only had one majority-minority district.²²² The Attorney General objected to Georgia’s first plan as well as Georgia’s second plan, reasoning that a third majorityminority district was possible.²²³ The Department of Justice had relied on the ACLU’s “max-black” plan which included three majority-minority districts, and Georgia’s General Assembly ultimately used ACLU’s plan as its “bench mark.”²²⁴ Once completed and submitted, the Department of Justice approved Georgia’s plan, of which five white voters then challenged in federal court alleging that Georgia’s redistricting map was a racial gerrymander and a violation of the Equal Protection Clause per Shaw .²²⁵

Justice Kennedy writing for the majority expanded Shaw by holding Georgia’s congressional redistricting plan to be a violation of the Fourteenth Amendment’s Equal Protection Clause.²²⁶ Despite Justice O’Connor’s unwavering focus in Shaw that the bizarre shapes of Districts 1 and 12 could not be understood as anything other than an effort to separate voters on the basis of race,²²⁷ the Miller Court held that Shaw was not “meant to suggest that a district must be bizarre on its face before there is a constitutional violation.”²²⁸ Rather, the Miller Court interpreted Shaw ’s irrationally-shaped district as merely circumstantial evidence that North Carolina was deliberately using “race as a basis for separating voters into districts.”²²⁹ In Miller , the Court rationalized that such use of race to separate citizens is prohibited, absent “extraordinary justification,” in the same way as states are prohibited from “[segregating] citizens on the basis of race in its public parks, buses, golf courses, beaches, and schools.”²³⁰

The resulting test to come from the Miller decision was that whenever a plaintiff has demonstrated that a state used race as the predominant factor in its redistricting scheme, the state’s decision is subjected to strict scrutiny.²³¹ The Court did not announce whether compliance with the Voting Rights Act was a compelling state interest because even if it was, Georgia’s redistricting plan was not reasonably necessary²³² to comply with the Section 5’s non-retrogression standard.²³³

Furthermore, in Miller , the Court used Georgia’s back-and-forth preclearance interactions with the Department of Justice pursuant to Section 5’s preclearance mechanism to demonstrate that the state had predominantly considered race while redistricting.²³⁴ Therefore, where the Department of Justice objected to a redistricting plan and ordered a state to increase the number of majority-minority districts, the Court could disagree and hold that the inclusion of additional majority-minority districts was not necessary to comply with the Voting Rights Act.²³⁵ This put states in a “double bind:”²³⁶ “If [states used] race as a predominant factor in drawing congressional districts, they [were] subject to strict scrutiny under the EPC.²³⁷ If they [failed] to draw majority-minority district, however, they are subject to litigation under Sections 2 and 5 of the VRA.”²³⁸

Miller ’s decision to set evidence of racial predominance as the triggering factor for strict scrutiny gave white voters an instrument, or more accurately, a weapon, to use against any future redistricting effort aimed at remedying the effects of past discrimination. Beginning with these decisions, the Court severely restricted the aims and scope of the Voting Rights Act that was enacted to address the long, tireless battle for black people to have their vote counted and political power represented within the franchise. Despite the Act’s clear purpose having been a remedial effort, the Court decreased the Act’s remedial efficiency,²³⁹ and chose to give power to the majority in a case where white people had not even suffered a cognizable injury according to the law.

As this note demonstrated, the Supreme Court’s decision in Shaw v. Reno was another example of a severely misplaced colorblind analysis that weakened opportunities for remedial measures to address effects of discriminatory practices in America. The Court reconstructed the political realities of Shaw to support the idea that North Carolina’s use of racial classifications harmed society when, in fact, those racial classifications gave black people two great opportunities to elect their candidates of choice and proved effective in doing so.²⁴⁰ In this decision and the Miller decision thereafter, the Court solidified the colorblind analysis of redistricting measures and in turn, created a brand-new constitutional claim grounded in a disingenuous colorblind analysis that would impede on minority communities’ success under the Voting Rights Act for the rest of time.