Holder v. Hall, 512 U.S. 874, 69 (1994)

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942

HOLDER v. HALL

Thomas, J., concurring in judgment

To be sure, the De Grandy Court repeatedly declares that proportionality is not a defense to a vote dilution claim. See post, at 1017-1021. That, of course, must be the stated rule if we are not to abandon openly the explicit disclaimer enacted by Congress in § 2(b). But given the Court's equivocation— proportionality is still always relevant—and the Court's ultimate analysis, such assurances ring hollow. The Court decides the question of dilution based upon proportionality. And it is apparent from the reasons the Court gives for rejecting maximization as a rule for decision that proportionality will drive results in future dilution cases as well.

Consider, for example, the hypothetical rehearsed by the Court concerning a jurisdiction with a 10-member elected body and a 40% minority voting population. See post, at 1016-1017. Assume that as currently constituted the districting scheme creates four majority-minority districts. Even if it is established in this hypothetical jurisdiction that all of the Gingles factors have been proved (as was found in De Grandy), and that there are both a history of discrimination and continuing discrimination (as was found in De Grandy), can it be seriously contended that the minority group can succeed, under any combination of facts, in bringing a § 2 challenge to require the creation of the mathematically possible seven majority-minority districts? The Court recognizes that it would be "absurd" to think that § 2 would allow such a result. That, after all, would give the group "effective political power 75 percent above its numerical strength"—that is, above its proportion in the population. Post, at 1017 (emphasis added). But if it is absurd to give the members of the group seven seats, why is it not equally ridiculous to give them six, or five? Or, indeed, anything beyond the four that would secure them seats in proportion to their numbers in the population?

If it is absurd to give members of the group seven seats, that is because, as the Court tacitly acknowledges, we assume that seats in accord with "numerical strength" will

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