First Among Equals (24 page)

Although it represented an aggressive intrusion into the world of brass-knuckles politics, the one-person, one-vote standard was at least race neutral. The only matters of interest in the equal-protection analysis were raw population numbers. Each state's electoral district should represent virtually the same number of individuals.

The race issue, however, severely complicated the role of the federal courts in redistricting. The judiciary, now deep in the political thicket, was faced with fresh issues raised by the ostensibly benign use of race to remedy discrimination at the ballot box. To many voters, however, the newly drawn lines represented a dream come true: election of the first African-American congressman since Reconstruction. In view of the history of racially polarized voting in the state, only a specially configured district, drawn so as to create a substantial black majority, would “ensure” the election of an African American. Even under that race-based approach, white majorities in the other eleven districts would still be able to elect eleven of the twelve members in the delegation. Thus the traditional power structures wouldn't be disturbed that much: indeed, in contrast to the Justice Department's approach, every incumbent would be protected under the state's plan.

That being said, oddly shaped districts set off alarm bells. Political gerrymandering was one thing, so long as the constitutional rule (created by the Warren Court) of one-person, one-vote was scrupulously honored. The district might look odd, or even bizarre, but if the voting power of each district in the state (or subsidiary jurisdiction) was mathematically equal, then there was no injury for the courts to worry about.

But as Ruth Shaw and Mel Shimm saw things, the use of race as a criterion changed the rules. Gerrymandering to protect (or enhance) a political party's position of ascendancy was one thing. Racial gerrymandering was quite another.

That was the hook for the Shaw litigation. Complaints about irregularly shaped districts, without more, would not stir the federal judiciary to action. But race-based gerrymandering would, or at least might. The seeming oddity was that the complaints about race-based line-drawing came from white voters. Indeed, the complaint sounded similar to white complaints—such as Allan Bakke's— about minority preferences in higher education.

But there was a fundamental difference between Ruth Shaw and Allan Bakke. Bakke was out on the street. He had been denied admission to a medical school that had only a limited number of seats in each class. Shaw, however, had not been denied access to the ballot box. She could still vote. This contrast in circumstances suggested the uniqueness of voting and elections.

There was another difference as well. The UC Davis Medical School opened in 1968. It had no history of racial discrimination. There was nothing for it to remedy. This could not be said of North Carolina in the conduct of elections and the regulation of voting. Like other southern states, North Carolina, notwithstanding its thriving economy and vaunted higher-educational institutions, still suffered from a history of racial discrimination in voting. This was part of a broader pattern of discrimination in education and employment opportunities. Indeed, it was North Carolina that had generated the case affirming court-ordered busing to achieve racial balance—
Swann v. Charlotte-Mecklenberg
(1971)—and the case broadening the employment discrimination provisions of the 1964 Civil Rights Act—
Griggs v. Duke Power
(1971). Both decisions arose from racist practices in public-school education and private employment.

The Court was vexed. The issue, again, was fundamentally different from
Bakke
because Shaw could still vote. In addition, this was a case where line-drawing was absolutely necessary. In no other way could district lines be fixed. In that line-drawing process, race-related data were inevitably present. The Court had previously said, echoing Justice Powell's opinion in
Bakke,
that such demographics could be taken into account in drawing district lines. Cohesive communities could be torn asunder, if the legislature so chose, in view of the traditional, virtually total discretion enjoyed by states and localities in this arena. The enduring message from the Warren Court seemed to be: Abide by one-person, one-vote, and the federal judiciary will not interfere with the electoral process, with one exception—if there seems to be an effort to “dilute” the effectiveness of a cohesive minority community that might otherwise enjoy “success” in the voting process. Success meant the election of a member of that minority group.

The Court's underlying assumption was this: Blacks will vote for blacks if given the choice, whereas whites will only vote for whites. There would be, in short, race-conscious voting. Voting data tended to support this unhappy assumption. In some localities there was a history of racially polarized voting coupled with steps taken by those in power to diminish the effect of the rising levels of black voting. Courts had struck down, as unconstitutional attempts to split the minority vote, at-large districts in which voters choose, say, all five members of a city council or county board of supervisors. Drawing five separate districts, in contrast, would enable a minority-dominated community within a city or county to elect a candidate from that community, instead of facing the tidal-wave effect of city-wide, or county-wide, voting.

The result was a huge riddle. North Carolina was recognizing the lack of success enjoyed by blacks in congressional races and trying to change that. Yet there was an appearance of excess, of using extreme measures to satisfy the Justice Department's demand that a “safe” district be created (a “majority minority” district consisting of a majority of African-American voters). There had been another, less extreme way of creating such a district without running roughshod over traditional districting principles. But the district that could have been proposed, with no extremes in line-drawing, would have pitted two incumbents against one another, and the state legislature seemed determined that no incumbent should lose his or her seat.

At a more theoretical level, at issue in the districting controversy was the moral definition of community. “Who is my neighbor” is a moral and religious question. “Neighbor” historically has meant much more than a physical or geographic relationship; it has meant more than cultural or racial connectedness. The term has conveyed a sense of the universality of human relationships, of the basic human dignity of each person and the respect each is owed. Thus, we are to seek the welfare and well-being not only of those who look, speak, and act as we do (the clan or tribe) but also of those whose appearances and ways seem very different from our own.

In that more philosophic or religious sense, racial gerrymandering seemed odd. Not only were “we the American people” not getting beyond race, we were openly embracing it and creating specially drawn districts reserved for African Americans, Latinos, or possibly other (theoretically any racial or ethnic-minority) groups.

Political scientists expressed worries about such self-consciously “reserved” seats. A “majority minority” district was to be created for the explicit purpose of facilitating the election of a minority representative. This suggested that the “set-aside” representative was being selected to represent “minority” interests. This seemed different from Democrats claiming to be “disenfranchised” when a Republican was elected, or vice versa. After all, a representative, while belonging to a political party, nonetheless represents all of the district's residents, not just the 50 percent–plus portion of those who voted for him.

This concept of a universal representative—one belonging to the entire district—was well established in practical politics. Thus, for years, members of Congress have mailed newsletters not only to district residents who are members of their own party, but to all residents in the district. After all, the representative might very well succeed in appealing across party lines and thus broaden his or her base of support. The dynamics of representation seemed different in set-aside districts—especially those drawn in contorted ways to further minimize the importance of political communities. Still, these districts were yielding the election of more minorities, a goal encouraged by the Justice Department in its enforcement of the Voting Rights Act.

In the 1993
Shaw
case, the Court struggled with this set of issues. The burden of resolving these questions fell once again to Justice O'Connor—just as in the affirmative-action arena. She took a traditional lawyerly tack by repairing to the Court's previous decisions, its body of precedent. Nothing, in her judgment, was “directly on point”—that is, no prior decision of the Court was “controlling” in the sense that it pointed to how
Shaw
should be decided. But O'Connor found a close cousin, a civil rights case from the 1960s. She returned, ironically, to the days of the Warren Court.

Here O'Connor made a move well understood by judges. If there is no case “directly on point,” as is often true, there still may be a comparable or analogous case. And the old case might provide at least a starting point for thinking about how the new case should be decided.

The prior case selected by Justice O'Connor was
Gomillion v. Lightfoot
(1960). There, the Alabama legislature, at the behest of the city fathers in Tuskegee, Alabama, responded to the growing enfranchisement of black citizens in Tuskegee by redrawing its long-standing boundary lines. Whereas Tuskegee used to be neatly rectangular in shape, it now had boundaries that were anything but rectangular: nooks, crannies, peninsulas, spikes, and other strange lines characterized the new Tuskegee. But the point of the remapping was clear. Comfortably situated inside the new city boundaries was the entire white citizenry. Now outside these boundaries was virtually the city's entire black population.

The Supreme Court, speaking through Justice Felix Frankfurter, invalidated this exclusionary action. The only possible intent, the Court found, in Alabama's drawing these particularly strange boundary lines was to cast the black citizenry outside the city's boundaries. This was a manifest act of race-based disenfranchisement, executed just as blacks were beginning to show political progress. This racially driven line-drawing, the Court held, ran afoul of the Fifteenth Amendment, which protects the right to vote from racial discrimination.

Gomillion
was, in the context of voting,
Brown v. Board of Education
all over again. In practical effect, African Americans were being removed from the community and relegated to second-rate status as residents of the unincorporated portions of the county, which had fewer services and civic amenities. Black schoolchildren experienced much the same circumstances when they were required to enroll in their own schools, ostensibly equal to “white” schools yet inferior to them. The line-drawing was so blatant that Justice Frankfurter, in an opinion that was uncharacteristically short for him, dismissed the effort as transparently racist.

Gomillion
was the case that Justice O'Connor, speaking for a five-member majority in 1993, relied upon in the Shaw case. The Tuskegee decision, she wrote, meant that the federal courts have jurisdiction over efforts to draw political boundary lines. In particular, the use of race was simply too sensitive to warrant a judicial “hands off” approach. Drawing a broader principle from the egregious setting of the Tuskegee experience, O'Connor echoed Justice Powell's sentiments in
Bakke,
by emphasizing that race-based line-drawing, because of its acute sensitivity, had to be done carefully and cautiously.

Thus, in Justice O'Connor's view, Ruth Shaw's case had to be heard. It would not do to dismiss the case, as the lower courts had, simply because the complaining white voters were still allowed access to the ballot box.
Gomillion
stood for the proposition that any citizen, regardless of race, may complain about a race-based gerrymander in federal court.

For the Court, this was only the beginning. The hard part lay ahead. What standards should govern in a case alleging an unlawful racial gerrymander? Would an entire body of law have to be created to provide standards for the district judges actually hearing the challenges in the first instance? And what guidance should be given the courts reviewing the district judges' decisions, the thirteen courts of appeals around the country?

Justice Kennedy shouldered this labor. Building on O'Connor's opinion in the Ruth Shaw case, he worked out the needed standard. He did so in a 1995 case (
Miller v. Johnson
) involving Georgia's congressional redistricting plan. Kennedy wrote that the state could take race into account in the redistricting process; complete race neutrality could not be achieved as a practical matter and did not have to be secured as a constitutional matter. But the state could not make race a “substantial” factor. Allowing race to drive the redistricting decision, he said, would violate equal protection.

Here, the Court assumed a familiar role. By articulating in general terms the basic principle of constitutional law, the Court is able to leave to the lower federal courts the task of filling in the all-critical blanks.

The Court, led by Justices O'Connor and Kennedy, now watched as the lower federal courts applied its new standards to redistricting plans challenged as unlawful racist gerrymanders. These plans did not survive judicial review. States such as Georgia and Texas, in addition to North Carolina, were deemed to have acted unconstitutionally by drawing bizarrely shaped districts so as to create majority-minority districts. State legislatures resumed their redistricting labors, drawing less extreme, bizarre districts but still taking race into account. Mel Watt's district in North Carolina, as finally redrawn in the late 1990s, was more compact, extending from Charlotte to Greensboro, but not extending, as before, all the way to Durham.

The essential message from the Court, now transmitted by federal district and appeals courts, was this: Avoid extremes. That is, avoid bizarre results in the course of trying to achieve a Justice Department–driven goal of maximizing electoral opportunities for previously unsuccessful (or only modestly so) minority groups.