Minority-Based Gerrymandering Facing Backlash

By DAVID G. SAVAGE

Oct. 8, 1994 12 AM PT

TIMES STAFF WRITER

WASHINGTON —

Two years ago, 39 blacks were elected to the House of Representatives, a historic high-water mark that civil rights advocates saw as a culmination of the Voting Rights Act.

Not only were blacks in the South finally guaranteed the right to vote, but a series of 1982 amendments to the law assured that electoral boundaries were drawn so that they had a real chance “to elect representatives of their choice.”

Thanks to the creation of “majority-minority” districts after the 1990 census, for the first time in this century, states such as North Carolina and Louisiana sent black representatives to Congress.

Now, however, a powerful backlash is sweeping through the federal courts, one that threatens to unseat many of those new minority representatives. In the last two months, judges in Louisiana and Texas and Georgia have struck down majority-minority districts as unconstitutional; districts in North Carolina and Florida remain under legal challenge.

“We could end this century where we began--with all-white congressional delegations,” said Rep. Melvin Watt (D-N.C.), who won election in 1992 in a newly drawn majority-black district.

The Supreme Court set off the backlash in 1993 when the justices declared that “racial gerrymandering” in districts such as Watt’s could be unconstitutional.

Dividing up black and white voters based on race “bears an uncomfortable resemblance to political apartheid,” said Justice Sandra Day O’Connor, speaking for a 5-4 majority. She derided the “bizarre” shape of a 160-mile-long district, which stretches across central North Carolina, and said that the Constitution does not allow states to draw odd-looking districts “solely” for racial reasons.

That ruling, in Shaw vs. Reno, marked a stunning reversal in voting rights law. Until then, federal courts and the Justice Department had pressed Southern states consistently to take further steps to elect minority candidates.

Indeed, lawmakers in North Carolina, Texas and Louisiana moved to create extra majority-minority districts in 1991 only after George Bush Administration lawyers told state officials that they were required to do so under the Voting Rights Act.

“They told us we’d be sued if we didn’t go further. Now they say we’re being sued for going too far,” said Ed Martin, executive director of the Texas Democratic Party.

The quick succession of rulings striking down the new districts has set off alarms among black and Latino activists and raised a profound dispute about the future of the Voting Rights Act.

And the dispute raises a fundamental question of democracy: What is a fair way for racial and ethnic minorities to be represented in law-making bodies?

Critics of the majority-minority districts say it is simply wrong for the states to use race as a means of drawing boundaries.

“I think segregated voting districts are no more tolerable than segregated schools or segregated drinking fountains,” said University of South Carolina law professor Katharine Butler.

“We shouldn’t be fixing elections based on race,” said Paul Hurd, a lawyer from Monroe, La., who successfully challenged congressional districts in Louisiana and Texas. He contends that all districts should be made “competitive,” so either a white or black candidate can win.

But minority-rights advocates say that this race-neutral view of politics simply ignores reality. No Southern state has ever sent a black representative to Congress except from districts where blacks constitute a majority, they said. The only way to integrate the congressional delegation, they believe, is to segregate the districts by race.

“In most parts of the country, white voters in general will not vote for a nonwhite candidate,” said University of Virginia law professor Pamela Karlan. If the creation of majority-minority districts is deemed unconstitutional, blacks and Latinos will not be fairly represented in Congress or the state legislatures, she said.

In North Carolina, 22% of the population is black. Nevertheless, no blacks were sent to Congress until 1992, when two of its 12 districts were drawn with black majorities. Now, 17% of the state’s congressional delegation is black.

Similarly, nearly 30% of Louisiana’s population is black. By creating two majority-black districts among its seven districts, 28% of the Louisiana congressional delegation was represented by blacks last year.

The Supreme Court almost surely will have to re-enter the dispute and clarify the law. O’Connor’s opinion suggested that majority-minority districts were unconstitutional only when they were “bizarre” in appearance. But more recently, judges have struck down majority-black districts that appear no more unusual than adjoining majority-white districts.

In Louisiana, a three-judge panel in December struck down a 60% black district represented by Democratic Rep. Cleo Fields. Known as the “Zorro district,” it “slashes a giant but somewhat shaky Z across the state,” according to the judge, connecting largely black rural areas across the northern border of the state, down the Mississippi River valley and east along the border with the state of Mississippi.

The state Legislature redrew the district in an emergency session in April, creating a 55% black district that formed a rectangle extending from Shreveport to Baton Rouge.

Nonetheless, the same three-judge panel struck down the reconfigured district in July because it was drawn for racial reasons. A day later, the judges issued their own map of the state’s congressional districts to be used for the November elections.

In an emergency move, the Supreme Court froze that order and indicated that it would consider the case during the court term that has just begun.

Last month, a panel of three judges, all Republican appointees, struck down majority-black congressional districts in Dallas and Houston, including the district once represented by Barbara Jordan. A third district with a Latino majority was also declared unconstitutional.

These districts “bear the odious imprint of apartheid,” wrote Judge Edith Jones, a prominent conservative and former general counsel of the Texas Republican Party.

But lawyers on both sides of the case conceded that the zigzag district boundaries in Texas were drawn mostly to protect Democratic and Republican incumbents. Moreover, they agreed that a compact majority-black district could have been drawn in Dallas and Houston, had the state Legislature chosen to do so.

Judge Jones upheld the white-majority districts on the theory that “incumbency protection” is a time-honored tradition in redistricting but creating districts to represent minorities is not.

This logic turns the Voting Rights Act on its head, said American University law professor Jamin Raskin. “They say it is OK to create a bizarre district to protect an incumbent, but it is unconstitutional to do the same thing for the purpose of electing a black or Hispanic.”

About 12% of the Texas population is black and the 1992 redistricting plan created two majority-black districts among the state’s 30 districts. Both are now deemed unconstitutional.

In the last census, 23% of Texans were Latino and the redistricting plan created seven of 30 districts with a slight majority of Latinos. In two of those districts, an Anglo candidate was elected to Congress.

State Democrats, who control the Legislature and must redraw the boundaries by March, see a political plot at work.

“I think this is a thinly veiled attempt by the Republicans to gain seats through the courts that they can’t gain through the political process,” said Martin of the state Democratic Party.

After the 1990 census, national Republican strategists supported the creation of majority-minority districts, apparently because they believe that they would drain away votes from Democratic officeholders. But when the strategy appeared to fail in the 1992 election, Republican Party officials backed lawsuits challenging those new districts.

On Sept. 12, judges in Georgia struck down a newly drawn majority-black district that stretched from Savannah to Augusta, proclaiming it an “unimaginative” means of increasing black electoral representation.

The judges said that they would draw a new map, but the U.S. Supreme Court on Sept. 23 ordered the November election to proceed on schedule after state officials filed an emergency appeal.

The Supreme Court’s order stays the lower court ruling until the full court can hear the appeal. Larry Chesin, one of the plaintiff’s lawyers, said that he does not expect the full court to rule on the case until June.

This year, North Carolina, where the litigation began, has proved to be the exception. The Supreme Court sent the case back for a trial to examine how the districts were drawn. In July, the judges upheld the two majority-black districts as constitutional because they were needed to give blacks some representation in Congress.

“The ultimate purpose of legislative apportionment and redistricting is to ensure the ‘fair and effective representation of all citizens,’ ” wrote Judge James D. Phillips of Durham for a 2-1 majority, quoting from the Voting Rights Act.

His opinion describes the creation of the two new districts and concludes that they make sense for voters. The first encompasses the rural and largely black quadrant in the northeastern part of the state. The second, Watt’s 12th District, connects the urban and industrial corridor that runs along Interstate 85 from Durham to Charlotte. While this district may look odd on the map, the judge said, it connects communities that have much in common.

“The question in the end,” the judge concluded, “is whether a deliberately race-based districting plan enacted by an overwhelmingly white legislature in one of the former Confederate states . . . shall be declared unconstitutional at the behest of five white voters whose voting rights have been in no legally cognizable way harmed by the plan.”

The Supreme Court will answer that question. The five white voters, backed by lawyers for the Republican National Committee, say that they will take their case back to the high court next month and seek to have the two majority-black districts invalidated.

Texas Congressional Districts

The Capricious way in which some districts are cited for possible gerrymandering and others are overlooked is illustrated in these profiles of neighboring Houston congressional districts:

Contested District:

East Houston Baytown 29th District

Population: 566,217

Percent change from 1980: (new district in the 1990s)

Race and Latino origin:

White: 54%

Black: 10%

American Indian, Eskimo, or Aleut: 0.4%

Other: 34%

*Latino origin: 61%

Non-Contested District:

South Houston and Suburbs 25th District