Turning the Voting Rights Act on Its Head : A court ruling is used to uphold oddly shaped ‘white’ districts while rejecting oddly shaped ‘minority’ ones.

Like the Dred Scott, Plessy vs. Ferguson and Korematsu cases, the 1993 decision in Shaw vs. Reno is proving to be another landmark holding about race in American life that the Supreme Court got all wrong. In the name of resisting “political apartheid,” the court now subjects all majority-black and Latino congressional districts to the strictest kind of scrutiny when they have a “bizarre” appearance on a map. This outburst of judicial activism by the court’s conservatives was targeted dead-center at the Voting Rights Act’s success in promoting minority political power. It is now causing chaos in the lower courts and threatens to set back progress in civil rights for many years.

In essence, Shaw gave whites the presumptive right not to be made the racial minority in legislative districts whose boundaries are visually unappealing. Never before in American history had the court found that a district’s appearance on a map could determine its constitutionality. Of course, if Shaw is to be the new standard, it is only a matter of time before blacks and Latinos demand the corresponding right not to be minorities in oddly shaped “white” districts. Yet such a result is logically impossible because, in our multiracial society, some group is always in the minority, and in a country that has practiced gerrymandering from day one, nearly every district looks bizarre to someone.

The court has not yet faced that paradox because Shaw’s progeny--an explosion of lawsuits in Louisiana, North Carolina, Georgia, Florida, Texas, California and Maryland--challenge only “minority” districts. In the Louisiana case, a federal court recently considered the majority-black district of Cleo Fields, the youngest member of the House of Representatives. The court did not even bother to hear the complaining witnesses before it invoked Shaw to eliminate his district as a racial gerrymander, likely forcing the talented freshman representative to run for reelection in a majority-white district. Nearly 20 other minority members of Congress now face a similar fate.

Shaw thus threatens to stifle the development of a generation of African American and Latino leaders that sees beyond race. The hard reality is that racially polarized voting still makes it tough on qualified minority candidates running in majority-white districts. But minority districts create both greater minority electoral success and greater competition and diversity within those communities. Moreover, the new generation of leaders emerging from America’s history of essentially all-white rule in Congress is both serious about interracial coalitions and passionate about minority interests.

As these new leaders struggle to hang onto their seats, the logic of Shaw produces a perverse incentive for them to favor residential segregation. The decision disfavors unsightly districts, but no one knows how or where to draw a pretty line. As far as the states can make out, the decision means that districts designed to give minorities a chance to elect representatives of their choice may not meander across great distances. Latinos and blacks are permitted to be the majority of a district’s population only when they live apart from whites en masse--insular and ghettoized. Thus, it is Shaw, not the new minority districts, that promotes a true “political apartheid” based on residency.

The litigation spawned by Shaw is now headed back to the Supreme Court. Minority districts have begun to fall, with three more declared unconstitutional in Texas in August. The Texas court, amazingly, upheld bizarre-looking districts carved out to protect mostly white incumbents even as it threw out bizarre-looking districts shaped to facilitate nonwhite participation. Fortunately, a week earlier the Supreme Court put the very conservative Louisiana ruling on hold until it could hear the case on appeal. There’s also some hope in a ruling that recently upheld the districts represented by Mel Watt and Eva Clayton, North Carolina’s first black representatives since Reconstruction. That decision found that the two oddly shaped majority-black districts could withstand scrutiny since they were intended to overcome Voting Rights Act violations. But even the North Carolina court faced a strong dissent from a judge who would have thrown out these two districts, the most racially integrated in the state’s history.

When the Supreme Court addresses these cases in the coming months, one can only hope that the conservative justices take the measure of the disaster they have created and drop this dubious enterprise.