Congressional Redistricting in North Carolina--Will It Never End?By Laughlin McDonald
Vol. 21, No. 2, 1999, pp. 18-19
For the third time in six years, the U. S. Supreme Court has wrestled with the issue of whether North Carolina's congressional redistricting is constitutional. Its latest decision,Hunt v. Cromartie (May 17, 1999), held that the trial court improperly invalidated the state's 1997 plan without first holding a trial to resolve disputed issues of fact whether the plan had been drawn "predominantly" on the basis of race, or merely to preserve partisan balance in the state's congressional delegation.
Since the decision didn't decide the merits of the dispute, it is very possible that the case will come before the Supreme Court yet a fourth time after a trial in federal district court. But by then the millennium census may have touched off another round of redistricting and the whole, protracted, process of legislative enactment and legal challenge can start all over again, to the continuing dismay and confusion of the voters of the state.
The North Carolina litigation is Exhibit A for the proposition that there is something drastically wrong with the Supreme Court's modern redistricting jurisprudence. After nearly a decade of litigation in the state, launched by Shaw v. Reno in 1993, neither the legislature nor the courts understand it, or can get it right.
Shaw v. Reno held that the North Carolina's 1991 congressional plan was subject to challenge under the Fourteenth Amendment because it contained a "bizarrely"-shaped, majority-black District Twelve. The ruling was made despite the fact that irregularly-shaped districts have been drawn to protect white incumbents time out of mind, and despite the facts that the Court had previously held that a regular district shape was not constitutionally required and that the white plaintiffs did not allege that they had been injured or that their voting strength had been diluted by the challenged plan.
Prior to Shaw, the Court had consistently held that a personal and concrete injury was "an essential and unchanging" requirement for bringing a case in federal court.
On remand, the trial court found District Twelve unconstitutional, and the Supreme Court affirmed on the basis that race was the "predominant" factor in drawing the
Page 19plan and the state had subordinated its traditional redistricting principles to race.
In similar congressional redistricting cases from Georgia and Texas, in which the Court also invalidated majority-minority districts, the Court held that states may conduct redistricting "with consciousness of race" and are "free to recognize communities that have a particular racial makeup." Indeed, according to the Court, it would be "irresponsible" for a state to disregard the provisions of the Voting Rights Act prohibiting minority vote dilution.
It is not at all apparent from the Court's decisions when the use of race in redistricting is prohibited by the Constitution, and when it is permitted or required by the Voting Rights Act. Among the sharpest critics of the redistricting cases have been the four Justices who have made up a dissenting minority- John P. Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. They have called the Court's new standards "unworkable," a "jurisprudential wilderness that lacks a definable constitutional core," and an "invitation" to litigation.
The Court's decisions are also fairly open to the charge that they embody a dual racial standard. In the Texas case, for example, the Court rejected challenges to a number of bizarrely-shaped, majority-white districts on the grounds that they were "political" gerrymanders and were not subject to strict constitutional scrutiny. At the same time, the Court invalidated three oddly shaped majority-minority districts on the grounds that they were impermissible racial gerrymanders. As Justice Stevens has pointed out in one of his dissenting opinions, "[r]acial minorities should not be less eligible than other groups to benefit from districting plans the majority designs to aid them."
In response to Shaw v. Hunt, North Carolina enacted a new congressional plan in 1997. This time District Twelve was more regular in shape and was majority (53 percent) white. The state also claimed that it drew its plan primarily for political reasons, that is, to maintain the existing split of six Republican and six Democratic districts and that race was not a predominant consideration. The district court, without benefit of a trial, brushed aside the state's explanations of how and why it had drawn the districts and summarily struck down the 1997 plan as "facially race driven."
In reversing, the members of the Supreme Court were in agreement-something rare for this Court in a redistricting case-and held that the district court erred in deciding the dispute without a trial. But they said nothing to clarify or modify the Court's redistricting standards. They also said nothing that indicates a realignment in the five-to-four split that has decided most of the prior congressional redistricting cases. As if to underscore the continuing division on the Court, the four dissenters filed a separate opinion concurring in the judgment of reversal, but without endorsing anything said in the majority opinion written by Justice Thomas.
In trying to pose workable standards in redistricting, it is well to recall the words of the late John Minor Wisdom, a former judge of the Fifth Circuit Court of Appeals. In a school desegregation case in Jefferson County, Alabama, he drew the distinction between a "color blind" Constitution which, in his words, prohibits "a classification that denies a benefit or imposes a burden," and a Constitution which must be "color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination." Wisdom's words apply equally to redistricting.
Plaintiffs, black or white, should be able to seek and get redress from the courts if a redistricting plan dilutes their voting strength or imposes an unequal burden upon them. But in the absence of dilution or other injury, the state should be free to take race into account in complying with the Voting Rights Act, in avoiding dilution of minority voting strength, in remedying the effects of discrimination, or simply in recognizing communities that have shared or common racial or ethnic interests.
Prior to Shaw, the Court frequently said that the basic purpose of redistricting was to reconcile the competing claims of political, religious, ethnic, racial, occupational, and socioeconomic groups. There is nothing in the Fourteenth Amendment, which was enacted expressly to secure equal treatment for racial minorities, which supports the notion that such competing claims can only be reconciled in districts that are majority white.
Laughlin McDonald is director of the Voting Rights Project, the Southern Regional Office of the American Civil Liberties Union.