517 U.S. 952 (1996), argued 5 Dec. 1995, decided 13 June 1996 by vote of 5 to 4; O’Connor for the Court, Kennedy and Thomas concurring, Stevens and Souter dissenting. In the 1993 case of Shaw v. Reno, the Supreme Court had struck down a North Carolina plan that relied on race to redistrict congressional districts. A bitterly divided Court had concluded that if the state used race to undertake such redistricting, the plan had to withstand the demanding test of strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. In Bush the Court returned to the same issue, doing so at the same time it decided another case, Shaw v. Hunt, which involved North Carolina once again. In both instances the justices struck down redistricting measures, although they were hardly of one mind about either the reasons for or the wisdom of doing so.
Of the two cases, that from Texas presented the greater challenge. Unlike the facts in Shaw v. Hunt, those in Bush were not nearly as extreme. The Texas legislature had redrawn three congressional districts in keeping with the census returns of 1990 and the requirements of the Voting Rights Act of 1965 and its amendments. Two of these districts were majority black and one majority Hispanic. The newly redrawn legislative districts were more compact and regularly sized than in North Carolina, and the black defendants insisted that, while race had been an issue, it was secondary to more traditional concerns, such as making sure that incumbents won reelection and that ongoing partisan politics were satisfied. The net effect of the redrawn districts was to consolidate black and Hispanic voters, which had traditionally been Democratic, and to give Republicans even greater opportunities in the remaining districts where, in many instances, the numbers of nonwhite voters were reduced. Thus Republican governor George Bush joined hands with black and Hispanic voters to support the redistricting legislation. The plaintiffs in the case were voters, one of them Al Vera, who were neither white nor Hispanic. They insisted that their votes had been marginalized as a result of the redrawn boundaries and that the legislature had actually violated the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment.
There was no majority opinion; instead, the Court spoke in a splintered voice. Justice Sandra Day O’Connor's plurality opinion was joined by Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy. Justices Antonin Scalia and Clarence Thomas agreed that the redistricting plan was an unconstitutional violation of the Equal Protection Clause, but they refused to add their names to O’Connor's opinion because it seemed to accept the proposition that under certain circumstances race could be constitutionally used to draw district voting lines. O’Connor found that in Texas race had not been the only factor used in creating the new districts but that the others (partisan politics and the needs of incumbents) had been subordinated to race. To make her point, O’Connor noted that the Texas legislature had examined race on a block-by-block basis while taking account of other data at the precinct level. Such an approach, according to O’Connor, gave a clear message that race had been used as a proxy for political gerrymandering. Political identity, the justice concluded, should not be predominantly racial.