Redistricting at the Millennium
By Laughlin McDonald
Vol. 20, No. 3, 1998 pp. 8-10
As we await the 2000 census that will trigger another round of redistricting at the congressional, state, and local levels, the U.S. Supreme Court has laid down a minefield of problems. In a series of 5-4 decisions, beginning with Shaw v. Reno in 1993 (which has caused the destruction of majority black and Hispanic congressional districts in Georgia, North Carolina, Texas, Florida, Virginia, Louisiana, and New York), the Court has made redistricting not only racially unfair but nearly unmanageable. It has also created an elaborate set of special rules that can only be described as affirmative action for white voters, allowing them to challenge majority-minority election districts. The Justices who dissented in the Shaw line of cases have correctly noted that the Court’s new standards are “unworkable” (Breyer and Souter), lack “a definable constitutional core” (Stevens), “render redistricting perilous work for state legislatures” (Ginsburg), and “place at a disadvantage the very group, African Americans, whom the Civil War Amendments sought to help” (Breyer).
One principle which does emerge with disquieting clarity from the recent redistricting decisions is that majority black and Hispanic districts are held to a more stringent standard than majority-white districts. The Court struck down the majority-minority congressional districts in the Shaw line of cases on the grounds that the districts were bizarrely shaped and the states had “subordinated” their traditional redistricting principles to race. The Court, however, had never called into question the constitutionality of a majority white district on account of its bizarre shape, or because the jurisdiction subordinated its traditional redistricting principles to race.
There is, of course, a long and continuing tradition of drawing majority white districts, including those that are highly irregular in shape and disregard “traditional” districting principles, to protect white incumbents. The old Eighth District in Louisiana drawn to ensure the re-election of white Congressman Gillis Long, and District Six in Texas created in the 1960s and known as “Tiger” Teague’s district after the white congressman of the same name, are two of many examples. Bizarrely shaped majority white districts had always been regarded as immune from challenge under the Court’s often stated principle that a regular looking district shape was not a federal constitutional requirement.
Non-traditional, oddly shaped majority white districts were also drawn in the 1990s. The Congressional Quarterly has described District Four in Tennessee (96% white) as “a long, sprawling district, extending nearly 300 miles . . . from east to west it touches four States-Mississippi, Alabama, Kentucky, and Virginia.” The Eleventh District in Virginia (81% white) has “a shape that vaguely recalls the human digestive tract.” District Nine in Washington (85% white) has a “‘Main Street’ [which] is a sixty-mile stretch of Interstate 5.” District Thirteen in Ohio (94% white) “centers around two distinct sets of communities . . . [t]he Ohio Turnpike is all that connects the two.” No court has ever held or suggested that any of these oddly shaped majority-white districts were constitutionally suspect.
In the recent Texas redistricting case, Bush v. Vera (1996), the plaintiffs challenged twenty-four of the state’s thirty congressional districts, eighteen of which were majority white. The district court invalidated just three districts-the only two that were majority black and one that was majority Hispanic. The court admitted that the other districts were irregular or bizarre in shape, but held that they were constitutional because they were “disfigured less to favor or disadvantage one race or ethnic group than to promote the re-election of incumbents.” The oddly shaped majority white districts, designed to keep white incumbents in office, were tolerable as “political” gerrymanders, while the oddly shaped majority-black districts, designed to provide black voters the equal opportunity to elect candidates of their choice, were intolerable as “racial” gerrymanders.
On appeal, the Supreme Court affirmed. According to Justice Kennedy, “[d]istricts not drawn for impermissible reasons or according to impermissible criteria may take any shape, even a bizarre one.” Justice O’Connor said in Shaw v. Reno that “reapportionment is one area in which appearances do matter.” In light of the Texas case one can conclude that appearances do indeed matter, but only where the districts in question are majority-black or Hispanic.
When it comes to bizarre district shape, if it’s white it’s all right.
Prior to Shaw, the Court frequently said that one of the essential purposes of redistricting was to “reconcile the competing claims of political, religious, ethnic, racial, occupational, and socioeconomic groups.” For that and other reasons, voting districts have regularly been drawn to accommodate the interests of Irish Catholics in San Francisco, Italian-Americans in South Philadelphia, Polish-Americans in Chicago, and Anglo-Saxons in North Georgia.
In light of Shaw, however, blacks and Hispanics are now the only racial or ethnic groups that are targeted for special disadvantages in the redistricting process. All others may organize themselves politically and press for a fair or maximum share of recognition in redistricting. The comparable efforts of blacks and Hispanics alone are subject to the exacting and debilitating standards of strict scrutiny. Such a result cannot be reconciled with the purposes of the Fourteenth Amendment. As Justice Stevens wrote in his dissenting opinion in Shaw, “[i]f it is permissible to draw boundaries to provide adequate representation for rural voters, for union members, for Hasidic Jews, for Polish-Americans, or for Republicans, it necessarily follows that it is permissible to do the same thing for members of the very minority group whose history in the United States gave birth to the Equal Protection Clause.”
Equally offensive to any principled notion of equal treatment under the Fourteenth Amendment are the special rules the Court has developed allowing white voters to challenge majority-black districts. Aside from creating a new cause of action based on district shape, the Court has dispensed with any requirement that white voters prove a discriminatory intent on the part of the legislature, and has relaxed the traditional notion of standing, i.e, that a plaintiff has suffered a direct and personal injury, to bring a case to federal court.
In Shaw the white plaintiffs did not claim that the state’s congressional plan diluted white voting strength. And in Johnson v. Miller, the 1995 redistricting case from Georgia, the trial court found that the white plaintiffs “suffered no individual harm;” the state’s plan had “no adverse consequences” for white voters. The lack of a concrete and personal injury, which has always been required as a condition for bringing a case to federal court, should have denied the white plaintiffs “standing.” The Court held, however, that the plaintiffs had standing because they alleged that their right to participate in a “color-blind” electoral process had been violated. The injury was in being “stereotyped” or “stigmatized” by a racial classification, i.e., being put in a majority-black district.
The problem with the plaintiffs’ argument was that the Court had previously held that a similar abstract, hypothetical, or stigmatic injury was insufficient to confer standing upon black voters to challenge discriminatory governmental action. In Allen v. Wright (1984) the Court rejected a challenge by blacks to alleged discrimination by the Internal Revenue Service on the grounds that “stigmatic injury, or denigration” suffered by members of a racial group when the government discriminates on the basis of race was insufficient harm to confer standing.
The Court also dispensed with any requirement that the white plaintiffs prove the state intended to discriminate
against them in drawing a majority-black or Hispanic district. The Court reasoned that a racial classification was apparent or “express” where a majority black district had a “bizarre” shape, and that accordingly “[n]o inquiry into legislative purpose is necessary.” In cases involving blacks, however, the Court has applied a much more stringent test. In City of Mobile v. Bolden (1980) the Court set aside a constitutional challenge by black voters to at-large elections in Mobile, Alabama on the grounds that they failed to prove by direct evidence that the system was established or was being maintained with a racially discriminatory purpose. Even proof that the voting strength of blacks had in fact been diluted was, according to the Court, “most assuredly insufficient to prove an unconstitutionally discriminatory purpose.”
Before the millennium census precipitates another round of redistricting, the Supreme Court should reconsider its unfortunate and misguided Shaw cases. They have created subjective and unworkable standards. Legislators no longer know the extent to which race can or should be taken into account in drawing district lines, the result of which has been to draw the federal courts increasingly, and unnecessarily, into the redistricting process. The Court has created rules that give political preferences to whites and shackle racial minorities with special disadvantages in redistricting. That this should be done in the name of the Fourteenth Amendment is one of the intolerable ironies of the Court’s modern redistricting jurisprudence.
States may legitimately consider race in redistricting for a variety of reasons-to overcome the affects of prior and continuing discrimination, to comply with the Fourteenth Amendment and the Voting Rights Act, or simply to recognize communities that have a particular racial or ethnic makeup to account for their common, shared interests. Only when the consideration of race causes real harm, such as the denial or abridgment of the right to vote or participate equally in the electoral process, should there be a warrant, and an obligation, for federal judicial intrusion.
Laughlin McDonald is director of the Voting Rights Project, the Southern Regional Office of the American Civil Liberties Union.