A Civil Rights Ruling Dear to South’s GOP

There is no little irony in the U.S. Supreme Court’s recent holding that racial redistricting is permissible as long as race is not the sole or dominant factor. With the Senate equally divided and Republicans holding a razor-thin advantage in the House of Representatives, the court’s ostensibly liberal ruling, one backed by civil rights organizations and opposed by the court’s four conservatives, could not be more dear to the hearts of Southern Republicans. The 5-4 decision will buttress GOP efforts to retain control of Congress by making the election and reelection of Republicans in the South easier after congressional districts are redrawn to reflect the 2000 census.

The strategy of racial redistricting, or creating “minority majority” congressional districts, was put into full play after the 1990 census. Racial gerrymandering isolates blacks, who vote overwhelmingly for liberal Democrats, in awkwardly shaped districts that often cut across the entire width of some states, particularly in the South. In turn, white conservative voters are placed in surrounding districts, which virtually guarantees the election of Republicans in those districts. As a result, although more minorities may be elected to Congress, fewer Democrats and more Republicans end up in the House of Representatives.

During the first Bush administration, the Department of Justice hit upon racial redistricting as a way to both increase minorities’ representation in Congress and elect more Republicans at the expense of the Democrats. The 1965 Voting Rights Act requires that all redistricting in Old South states not dilute black votes. Somewhat perversely, the department parlayed this standard into an affirmative action policy to benefit Republicans. By forcing Southern state legislatures to redistrict along racial lines, it slightly increased the number of minority-majority districts while greatly boosting the number of those disposed to vote Republican.

The Congressional Black Caucus welcomed the Bush administration’s innovative compliance with the Voting Rights Act, but white Democratic politicians in states like Virginia, North Carolina and Georgia were left in a no-win situation. On the one hand, they could not argue, at least vehemently in public, against the creation of such minority-majority districts without inviting charges of racism. On the other, they faced losing seats in districts that lacked their most reliable supporters.

Make no mistake, this affirmative action strategy worked for Republicans. Following the 1990 census, 26 new minority-majority districts were created. More blacks and Latinos were elected to Congress. But so were Republicans like Newt Gingrich; in 1994, the Grand Old Party won control of the House in large part because of their wins in the South.

Ever since, the Republican National Committee has pushed its self-serving version of affirmative action to maintain party hegemony in the South. Although not widely known, the committee has even developed computer programs and models--so-called “Max Black” plans--to help Southern legislatures draw racially gerrymandered districts for distribution to black politicians.

Ironically, during the last decade, the Supreme Court’s five most conservative justices voted to strike down such districts. The lead case, Shaw v. Reno (1993), involved a challenge to North Carolina’s 12th Congressional District. As redrawn in 1992, it was overwhelmingly black and slithered, snake-like, about 160 miles along Interstate 85, from Charlotte to Winston-Salem and to Durham. Writing for the court in that case, Justice Sandra Day O’Connor was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. She held that “bizarre,” ’tortured” and “irregular” minority-majority districts run afoul of the 14th Amendment’s equal protection clause.

O’Connor’s bare majority hung together in rejecting other racial gerrymandered districts in the 1990s. But she never completely ruled out race as a factor in redistricting. By contrast, Scalia and Thomas, the court’s most conservative justices, have held that race-based redistricting is never permissible.

The more liberal members of the court--Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer--steadfastly dissented. They argued for judicial self-restraint and deference to politics in determining the shape and composition of congressional districts.

The court’s latest ruling on North Carolina’s 12th Congressional District is its fourth. Redrawn three times since the 1993 case, the district is currently about 40% black and more compact, stretching across only one-third of the state, from Charlotte to Winston-Salem.

But this time, O’Connor abandoned her more conservative colleagues and joined with the more liberal dissenters. Race may be considered in redistricting, according to the court’s new majority, but only as long as it’s not the “predominate factor.” In other words, race may be a factor in redistricting but not the sole factor, and blacks apparently may not constitute a majority in the district.

With congressional redistricting underway, the decision in Hunt v. Cromartie could not be more timely. But it is certain to be a hollow victory for liberal Democrats, because, as O’Connor knows, it signals Republicans to press ahead with their brand of affirmative action in racial redistricting to hold onto their control of the House.

It’s noteworthy that the ruling turned on the vote of the justice with the most political experience and, arguably, the vote of the most political justice on the court. Before her appointment in 1981 by former President Ronald Reagan, O’Connor served on state courts and in Arizona’s state legislature, where she must have learned something about the politics of redistricting.

Moreover, she is at the court’s center stage, casting the pivotal vote on such hotly contested political issues as abortion and affirmative action. Recall, too, that on election night in November at a cocktail party, O’Connor reportedly became upset when news organizations initially announced that Vice President Al Gore had won the presidency. Her husband explained that she had planned to retire if Bush was victorious. Time will tell whether O’Connor will give President George W. Bush his first opportunity to make his mark on the Supreme Court.