Thornburg v. Gingles/Concurrence White

JUSTICE WHITE, concurring.

I join Parts I, II, III-A, III-B, IV-A, and V of the Court's opinion and agree with JUSTICE BRENNAN's opinion as to Part IV-B. I disagree with Part III-C of JUSTICE BRENNAN's opinion.

JUSTICE BRENNAN states in Part III-C that the crucial factor in identifying polarized voting is the race of the voter and that the race of the candidate is irrelevant. Under this test, there is polarized voting if the majority of white voters vote for different candidates than the majority of the blacks, regardless of the race of the candidates. I do not agree. Suppose an eight-member multimember district that is 60% white and 40% black, the blacks being geographically located so that two safe black single-member districts could be drawn. Suppose further that there are six white and two black Democrats running against six white and two black Republicans. Under JUSTICE BRENNAN's test, there would be polarize voting and a likely § 2 violation if all the Republicans, including the two blacks, are elected, and 80% of the blacks in the predominantly black area vote Democratic. I take it that there would also be a violation in a single-member district that is 60% black, but enough of the blacks vote with the whites to elect a single black candidate who is not the choice of the majority of black voters. This is interest-group politics rather than a rule hedging against racial discrimination. I doubt that this is what Congress had in mind in amending § 2 as it did and it seems quite at odds with the discussion in Whitcomb v. Chavis, 403 U.S. 124, 149-160 (1971). Furthermore, on the facts of this case, there is no need to draw the voter/candidate distinction. The District Court did not and reached the current result except, in my view, with respect to District 23.