The Supreme Court's Recent Redistricting Decisions: Change of Heart or Lack of Interest?

By Laughlin McDonald

Vol. 22, No. 4, 2000 p. 9

After a series of blockbuster decisions beginning with Shaw v. Reno in 1993, it looks as if the Supreme Court has, at least for the moment, had its fill of the so-called reverse discrimination gerrymandering cases. During the current term it has thus far declined to review a lower court decision rejecting a challenge by white voters to a majority black councilmanic district in Jefferson Parish, Louisiana (Theriot v. Jefferson Parish, Louisiana), as well as a similar challenge to two congressional districts in Florida (Chandler v. Harris).

In another case, without deciding the merits, the Court set aside a successful challenge by white voters to two majority black state legislative districts in Alabama on the ground that the plaintiffs, who lived in adjacent majority white districts, lacked standing to complain about the way the majority-minority districts had been drawn (Sinkfield v. Kelley). The Court also refused to review a case from Tennessee in which the state argued that a lower court's decision ordering into effect an additional majority black house district in the six county area of Rural West Tennessee was an unlawful prescription for "black maximization" (Sundquist v. RWTAAAC).

Do these recent decisions, all of which were resolved in favor of minority voters, suggest that the Court is having second thoughts about the Shaw line of cases and the fairness of singling out majority-minority districts for strict, and generally fatal, constitutional scrutiny? Probably not. There is no reason to believe that the architects of the Shaw doctrine (Rehnquist, O'Connor, Kennedy, Scalia, and Thomas) have had a real change of heart. A more likely explanation is that as the decade draws to a close, and the constitutionality of existing plans is rapidly becoming moot in light of the new census, the Court is simply no longer interested in redistricting, at least for the time being.

A notable exception is congressional redistricting in North Carolina, a matter the Court has taken up for the fourth time in seven years (Hunt v. Cromartie). It heard oral argument in the case on November 27 and will shortly decide if the state's plan, which no longer contains any majority black districts, violates the Fourteenth Amendment.

It would help if the Court were to use the North Carolina case as an occasion to clarify its conflicting redistricting standards, described charitably by the dissenting members of the Court (Stevens, Ginsburg, Souter, and Breyer) as "unmanageable." Under the Court's present rules, a legislature can only guess if it properly took race into account in drawing a plan, as it is required to do to comply with the Voting Rights Act, or if it placed too much emphasis on race.

It would also help if the Court were to apply the same standards to white voters that it applies to black voters who challenge redistricting plans on constitutional grounds-that they show they have suffered an actual injury or dilution of their voting strength and that the state intended to discriminate against them. But whether the Court will do that, or continue to write the rules to favor majority white districts, remains to be seen.

Laughlin McDonald is director of the Voting Rights Project at the American Civil Liberties Union's Southern Regional Office.