Jack Salzman, Cornel West Struggles in the Promised

338 // THEODORE M. SHAW
to this conservative legal organization supporting white plaintiffs, no matter how
solicitous a black elected official from a majority black district may be of the concerns
of his or her white constituents, no matter how well he or she may represent the interests
of all constituents, white voters suffer an injury.
21. In the "analytically distinct" cause of action recognized in Shaw, bizarreness
was central to the conclusion that the challenged district was drawn to segregate voters
between districts. Now the Court announced a standard that expanded opportunities
to attack majority-minority districts beyond those extreme cases where the
shape of a district was alleged to be so tortured as to suggest that it could only be
understood as an attempt to "segregate" voters along racial lines. The Court's Miller
decision put it on a collision course with the Voting Rights Act. If it means what it
appears to mean, any time an electoral district is drawn to comply with the Voting
Rights Act it can be said that race was the predominant factor in its creation. Were
it not for racial considerations, i.e., the remedial goals of the Voting Rights Act, the
challenged district would not have been created. After Miller, all electoral districts
drawn pursuant to the Voting Rights Act are theoretically, if not actually, vulnerable.
22. The latter claim presaged the claims of plaintiffs in the Shaw v. Reno cases.
Significantly, it did not allege that they were discriminated against as Jews; rather the
claim that they were discriminated against on grounds of race must have gone to their
status as white voters. Indeed, the plaintiffs specifically disavowed any effort to seek
permanent recognition as a community in legislative reapportionment.
23. No doubt, their status as white voters was still relevant to their arguments;
since Jews were not a protected group under the Voting Rights Act their claim was
constitutional as opposed to statutory. Since the Constitution requires proof of discriminatory
intent, the U.J.O. plaintiffs would have had to prove that the legislature
intentionally discriminated against them as Jews when it drew the redistricting plan,
a claim that they were unlikely to be able to support.
24. One might argue that Judaism, as a religion, is not comparable to race.
Judaism is, as are all religions, a system of beliefs shared by the faithful. To be a Jew
is to share religious, cultural, and historical experiences that have substantive meaning
that people willingly embrace. Whatever the different forms of Judaism may be,
Jews are not heard arguing that there is no common Jewish interest or community.
One might further argue that race is a social (and therefore an artificial) construct
that is not built on a system of common beliefs and experiences willingly shared by
African Americans. To the extent that black Americans do share a common experience,
the argument would continue, it is one that treated them as members of a group
discriminated against solely on the basis of their skin color and not as individuals. The
antidote would be color blind treatment of individuals and a movement away from
group identity based on race.
This argument fails, however. While race and religion are different, the fact that
race may be a social construct does not render its "ties that bind" any less powerful.