<x-flowed>   As the use of White v. Regester in framing the Section 2 totality of the circumstances test, both through the 1982 amendments and Rogers v. Lodge indicates, constitutional and VRA standards often get blended.  That may be the case in LULAC.
  In Miller v. Johnson, Justice Kennedy was presented with an 11th district that stretched from the DeKalb County suburbs to the Savannah ghetto.  He decided, completely without evidence, that African-Americans in those two bulbs of the district didn't have much in common.  In LULAC, he made a similar observation about Latinos in the Austin and Mexican border areas connected in district 25 by thin bands of territory.  Even if he didn't formally reach the equal protection claim in LULAC, the gut feeling (I almost said "analysis," but thought better of it) seems the same.
  In Shaw v. Hunt, CJ Rehnquist rejected the state's contentions that once a compact, majority-minority district was shown to be possible, the state could shift the boundaries of that district somewhat to satisfy other interests, and that such shifts showed that race wasn't the "predominant reason" for drawing the district.  Rehnquist's implication was that the state could take ONLY race into account in drawing a district to be successful in a claim that Section 2 provided a compelling state interest.  In LULAC, Kennedy may be read as saying that Texas can only claim to be satisfying Section 5 by keeping District 23 as a minority opportunity district, not by switching its MOD quota to district 25.  So Souter's "mistake" may be closer to following Kennedy's logic than listening to his humming.
  In any event, Kennedy could be read as saying that District 25 didn't allow the state to satisfy the VRA (Section 5), even if it wouldn't have violated Section 2 by itself.  And the whole plan didn't satisfy the VRA because District 25 didn't substitute for District 23 in a proportionality analysis, which is a Section 5?  Section 2? criterion.  If this reading is correct, what's new here is partly what Rick said -- a (not unusual) blurring of the constitutional and VRA standards regarding communities of interest -- but much more important, two new facets:  1. gauging compliance with the VRA by looking not only at a single district (23), but at the plan as a whole, which is wholly different from Shaw, Miller, and even DeGrandy; and 2.  the explicit use of proportionality as a criterion in a way we haven't seen since DeGrandy.
Morgan


Prof. of History and Social Science, Caltech
snail mail:  228-77 Caltech, Pasadena, CA 91125-7700
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to order Colorblind Injustice:  <http://uncpress.unc.edu/books/T-388.html>
"Peace if possible, Justice at any rate" -- Wendell Phillips



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