Voting Rights and the Court:
Drawing the Lines
Vol. 15, No. 3, 1993, pp. 1-6
On the last day of the 1993 term, the Supreme Court handed down one of the most controversial voting rights decisions of the last ten years, Shaw v. Reno. The Court held that white residents of North Carolina could challenge the state's majority African American 12th congressional district because it was "so bizarre on its face that it is 'unexplainable on grounds other than race.'" Although the holding of the case is quite narrow—there are not many, if any, districts as irregularly shaped as the 12th, which has been dubbed the "I-85 district" because it follows an interstate highway—it opens the door for opponents of the Voting Rights Act to question the propriety of all race-conscious redistricting.
Shaw v. Reno has stirred up public debate, but in fact the creation of minority-controlled election districts has always been controversial, as the courts and the larger society struggle to reconcile the competing goals of protecting minority rights and achieving a society that is color blind. The Supreme Court, for example, in 1971 in Whitcomb v. Chavis, dismissed a challenge by black voters to multi-member districts for the Indiana legislature after holding that the plaintiffs were not entitled to single-member districts drawn to ensure the representation of racial and ethnic minorities. Reflecting a strong bias in favor of majoritarianism and judicial
Page 2neutrality in the political arena, the Court conceded that the voting power of black residents may have been canceled out, but concluded that "this seems a mere euphemism for political defeat at the polls."
Two years later the Court reversed itself and held in White v. Regester that African-Americans and Hispanics in Texas were entitled to single-member districts for the legislature where, based on the "totality of circumstances," multi-member districts had the effect of diluting their voting strength by denying them the equal opportunity to elect candidates of their choice. White became the reigning standard in vote dilution cases and resulted in the creation of minority-controlled election districts throughout the South and other sections of the country.
But again, the Court had second thoughts. In 1980 in City of Mobile v. Bolden, it held that black voters challenging at-large elections for the city commission had to show as a condition for obtaining single member districts, not simply that their voting strength was diluted, but that the system was established or was being maintained with a racially discriminatory purpose. The decision in Bolden effectively took voting rights back to the days of Whitcomb v. Chavis.
Congress, at the urging of the minority and civil rights communities, responded to Bolden in 1982 by amending the Voting Rights Act to restore the "results," or totality of circumstances, test of White v. Regester. But it did so in the face of loud opposition from the Reagan
Page 3administration, a few conservative members of Congress, and a small coterie of lawyers and academics.
The opponents recited a litany of horribles before Congress. The amendment would, they said, create racial division, it would "pit race against race," impose a quota system for office holding, cause resegregation, and reduce the incentives for building racial coalitions. Senator Orrin Hatch warned that the amendment would lead to the creation of "political ghettos," and that minority influence would suffer enormously.
Congress rejected these arguments and passed the amendment by overwhelming majorities in both houses. It concluded that the totality of circumstances test had a proven and reassuring track record which belied the speculations and dire predictions of the opponents. According to the senate subcommittee, saying that minority-controlled districts were the cause of, rather than a response to, racial polarization was "like saying that it is the doctor's thermometer which causes high fever."
Two days after the congressional amendment the Supreme Court, continuing to reflect institutional indecision and ambivalence in the area of minority vote dilution, reconsidered the implications of the Bolden decision in a case with similar facts from Burke County, Georgia. In Rogers v. Lodge it held that while racial purpose was required for a constitutional violation, racial purpose could be inferred from the discriminatory effect of a challenged voting practice. The Court for all practical purposes restored the test from White v. Regester.
In Thornburg v. Gingles (1986), the Supreme Court decided its first case under the 1982 Voting Rights Act amendment, and greatly simplified the test for minority vote dilution. It held that where a minority was geographically compact, or could constitute a majority in one or more single-member districts, where voting was racially polarized, and where whites voted as a bloc usually to defeat the candidates preferred by the minority, majority minority single-member districts were required.
Many in the civil rights community believed that Congress and the Court had finally silenced the critics of remedial districting schemes. Indeed, the progress in minority office holding after 1982, brought about in large measure by the creation of majority minority districts, was impressive and broadly accepted. A forthcoming book edited by Chandler Davidson and Bernard Grofman, which promises to be a definitive study of the Voting Rights Act and the impact of district voting at the state and local levels, describes the gains in minority political participation and office holding during this period in wholly positive terms as "The Quiet Revolution."
But the critics refused to be silenced. Throughout the 1980s they remained more or less on the fringe of public discussion and continued to complain in articles and an occasional book that majority minority districts were "electoral apartheid," and that the Voting Rights Act had been transformed into an unwanted form of affirmative action. During the 1990s redistricting, however, they gained new allies—Democrats and members of the press who charged that the Republican party, including the Republican-controlled Department of Justice, was systematically and cynically exploiting the Voting Rights Act by promoting and requiring the creation of majority minority districts simply because the by-product was more solidly white, Republican districts.
There is no question that the Republican party adopted a deliberate strategy of promoting an increase in the number of minority congressional and legislative districts to further its own partisan goals. It also made early and large investments in redistricting software which it offered without charge to minority and civil rights groups. The extent to which the Republican strategy worked is debatable. (The software, at any rate, had so many bugs and was so expensive to operate that it was never of any use to civil rights groups.)
In Virginia, for example, there was a big increase in the number of black legislative districts, but Democrats blunted Republican gains by pairing fourteen Republican incumbents in seven districts, and redrawing other Republican-controlled seats. The North Carolina congressional plan created two majority black districts, but at the same time protected all the non-retiring Democratic incumbents. In Georgia, on the other hand, Republicans increased their share of congressional seats from one to four directly as a result of an increase from one to three in the number of majority-black congressional districts.
There is far less evidence that the Department of Justice was part of the Republican strategy and was acting merely out of partisanship. While the interests of the Department and the party may have been congruent, the evidence shows basically that the Department of Justice was enforcing the preclearance provisions of the Voting Rights Act in the manner intended by Congress, vigorously and fairly.
The opponents of race-conscious districting got a second boost from a wholly unexpected quarter, a handful of black elected officials. No doubt venting their partisan frustrations over the Republicans' redistricting strategy, they lashed out at the concept of creating more majority minority districts. One of the most visible was
Page 4John Lewis, a hero of the civil rights movement and the highly respected representative from the majority-black 5th congressional district in Georgia.
During the midst of the most successful redistricting ever, in which majority black congressional districts were drawn for the first time since Reconstruction in North Carolina, South Carolina, and Virginia, Lewis was quoted in USA Today as saying that the creation of majority minority districts "looks too much like South Africa. It seems like we're creating little black townships. You shouldn't just put people together because they are the same color." Those were, of course, verbatim the words of the opponents of the 1982 amendment of the Voting Rights Act.
Lewis was not alone. Several members of the Congressional Black Caucus, including Louis Stokes, Alan Wheat, Mike Espy, and Craig Washington, along with Dan Blue, North Carolina House majority leader, and Lois DeBerry, speaker pro tem of the Tennessee House, filed a controversial amicus brief in the Supreme Court in a redistricting case from Ohio, Voinovich v. Quilter. The brief, which was written essentially by the Democratic party, argued that the Voting Rights Act was not intended to lead to "political segregation" in which minority voters controlled a few districts but lacked "influence" in the rest. It warned against entrenching "separate-but-equal elections as a permanent feature of the American landscape."
The controversy over minority voting rights was stoked further after President Clinton nominated Lani Guinier as Assistant Attorney General for Civil Rights, and then abruptly withdrew the nomination because he thought her views were too radical. Guinier was sharply attacked by the 1982 coterie of academics and some
Page 5members of Congress as being a proponent of "quotas" for minority office holding and "vote-rigging schemes." In fact she was not. Much of the criticism of Guinier was simply a replay of that made in the past by the traditional opponents of effective civil rights enforcement.
Guinier has proposed the voluntary use of limited and cumulative voting as alternative remedies for minority vote dilution, but so have a lot of others, including federal judge John Minor Wisdom, one of the leading jurists of the Fifth Circuit Court of Appeals. Limited and cumulative voting, whatever their merits, cannot accurately be characterized as "quotas" or "vote-rigging schemes."
In touting the advantages of limited and cumulative voting, however, Guinier credited some of the old criticism of districts by saying that the alternative procedures would avoid "arbitrarily separating groups to create separate majorities in order to increase their share," would encourage "cross-racial coalitions," and would "reduce racial polarization." But that was not enough to appease the quota police, or save her nomination. Other statements by her of the necessity of "disaggregating majority interests in a system dominated by irrational prejudice," were too problematical for many in the U.S. Senate, and finally for the president himself.
The Guinier nomination, the Republicans' redistricting strategy and the Democrats' reaction to it, and the controversial amicus brief may have had no impact on the deliberations of the Court. They showed, however, that race-conscious remedies in voting remain a controversial issue, even to some extent in the minority community.
After the opinion in Shaw v. Reno, the Congressional Black Caucus, some of whose members' districts were suddenly put at risk, denounced the decision and said it casts "a chilling pall across the face of electoral politics." As for creating majority minority districts, the caucus was of the view that it "is a clear and warranted practice." Lewis for his part quickly denounced Shaw v. Reno as "the greatest threat to the Voting Rights Act since it was written in August 6, 1965. If it wasn't for the Voting Rights Act, it would still be primarily white men in blue suits in Congress." But the retractions, of course, came too late. Echoing the "political segregation" language of the controversial amicus brief, the Court held that race-conscious redistricting "bears an uncomfortable resemblance to political apartheid."
It is impossible to predict the impact of Shaw v. Reno, particularly in an area of the law as volatile as vote dilution and redistricting. However, taken purely as a legal document the decision can and should be read narrowly.
First, the Court did not invalidate the North Carolina plan. It ruled only that a district that is so bizarre on its face that it is unexplainable on grounds other than race may be challenged on constitutional grounds. Few districts should meet this threshold test.
Second, the decision holds or implies that even a "bizarre" district would be constitutional if it were in fact explainable on grounds other than race, or if it furthered a compelling state interest and were narrowly tailored to promote that interest. Although the Court did not decide the question, drawing a district to comply with the Voting Rights Act should constitute a compelling state interest. Whether the district were narrowly tailored would depend, presumably, on whether a more compact, more aesthetically pleasing minority district could be drawn. A somewhat more compact second majority-black district could in fact have been drawn in North Carolina in another part of the state, but the I-85 district was adopted to protect incumbents.
Third, Shaw must be read in conjunction with Voinovich v. Quilter, decided by the Court in March of this year. In Voinovich, the district court invalidated an Ohio legislative redistricting plan on the ground, among others, that it contained several majority-black districts. The district court said that the Voting Rights Act prohibited the creation of any majority minority districts unless they were necessary to remedy a violation. In a unani-
Page 6mous opinion written by Justice O'Connor, the Court held that the act did not prohibit a state from creating majority-black districts, and that a plan could violate the act only if the plaintiffs showed that it had the effect of denying or abridging the voting strength of a protected class.
Thus, Shaw and Voinovich may fairly be said to stand for the propositions that majority minority districts are presumptively valid under the Voting Rights Act, and that a district may be challenged under the Constitution only where it is extremely irregular on its face. But even such a district would be constitutional if it were explainable on grounds other than race, or if it furthered a compelling state interest and were narrowly tailored to promote that interest.
No matter how narrowly Shaw v. Reno can be read, discrimination-prone jurisdictions, or those that want to maintain the status quo, as well as judges who are unsympathetic to the claims of minority plaintiffs, will doubtlessly argue that the decision should be applied as broadly as possible to draw into question all majority minority districts that are not perfectly symmetrical. Since "bizarreness" is inevitably in the eye of the beholder, Shaw v. Reno will at the least generate a new wave of voting rights litigation challenging majority minority districts on the ground that they are not compact.
Compactness, as Shaw v. Reno holds, is now relevant in redistricting. But it should be a functional rather than an aesthetic concept as the Court suggests.
Legislative or congressional districts may have an irregular shape to accommodate geographic features, such as rivers and mountain ranges. Districts for a city may be irregular because, as a result of patchwork annexations, the boundaries of the city are themselves irregular. Districts may be irregular to protect incumbents, or districts may be irregular to insure that the voting strength of minorities is not diluted. By the same token, a district may be perfectly symmetrical but fragment concentrations of minority population thereby diluting their voting strength. What is important is not how a district looks, but whether those who live in it can combine for effective political activity.
As one lower court has put it, a district is sufficiently compact if it allows for "effective representation." A district would fail this test of compactness if it provided no sense of community, or if its members and its representative could not effectively and efficiently communicate with each other, or if it were difficult to tell who actually lived in the district. Applying this standard, and based upon accepted notions of federalism, a court would be required to defer to the legislature's choice in district configuration and set it aside only upon proof that the choice violated the norm of "effective representation," and not simply because the shape of the district was aesthetically unappealing.
The continuing claim that majority minority districts are political apartheid and exacerbate racial bloc voting has no real basis in fact. There is no more credible evidence to support the claim today than there was when it was rejected by Congress more than ten years ago. Indeed, the evidence strongly suggests that the creation of majority minority districts, and the election of highly regarded individuals such as John Lewis and Mike Espy, tend in the long term to decrease racial bloc voting and polarization. Certainly that is the underlying assumption of remedial redistricting. It is designed to break down the barriers of race and allow minority voters to participate on an equal basis in the process of self governance.
Nor are majority minority districts "ghettos" likely to elect persons representing only members of their own race. The 12th congressional district in North Carolina, for example, is in fact less segregated, i.e. predominantly of one race, than any congressional district previously drawn in the state. The district is about 57 percent black and 43 percent white. To suggest that such a district is segregated or is a ghetto, but that one in which the racial percentages were reversed is integrated, tortures language and logic. Political apartheid more accurately describes the systems that existed in states such as North Carolina, South Carolina, and Virginia, where all the congressional districts were majority white and no blacks in modern times had ever been elected to Congress.
We do not live in a world that is color blind. Racial bloc voting remains a fact of political life in many jurisdictions. Where it exists and is shown to dilute minority voting strength, majority minority districts are a proven and effective remedy.
Laughlin McDonald is the director of the American Civil Liberties Union Southern Regional Office, which specializes in voting rights cases.