Reaffirmation or Requiem for the Voting Rights Act? - Shaw v Reno

SHAW V. RENO

Since 1901, not a single African American had been elected to Congress from North Carolina. But after the 1990 census, in response to pressure from the U.S. Justice Department the state created two majority/black districts to comply with the Voting Rights Act. Both of these districts went on to elect black representatives in 1992, Eva Clayton in the 1st and Mel Watt in the 12th.

Watt's district follows Interstate 85 for 160 miles. Its snake-like shape, not much wider than the highway, was influenced by the desire to connect cities with substantial black populations and by the desire to protect incumbency. Five white voters went to court, charging that the 12th's odd shape violated the Fourteenth Amendment. The plaintiffs filed suit not as injured parties who had been victimized by discrimination, but as spoilers.

A three-judge panel of the U.S. District Court rejected their claim, but on appeal the plaintiffs garnered support from a deeply divided Supreme Court. Justice Sandra Day O'Connor, writing for the majority, called the 12th district "so bizarre on its face that it is `unexplainable on grounds other than race'.... It is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past." Moreover, the plan "bears an uncomfortable resemblance to political apartheid." Still, O'Connor said the district would be constitutional if it furthered a compelling state interest and was narrowly drawn, leaving that determination up to the district court. In legal terms, the decision was narrow. But O'Connor's language had the effect of opening the door to a wholesale attack on 30 years of progress toward equal voting rights.

For the Court to call the North Carolina plan "apartheid" was semantically, historically and politically inaccurate, if not outrageous. No Justice had ever used the word "apartheid" to describe even the most extreme efforts to disfranchise black voters. Yet apartheid, which is the total exclusion of one racial group from participation in government and the total domination of one racial group by another, would better describe the system that existed in North Carolina before 1992, when all districts were all-white and no blacks had been elected to Congress in almost a century.

In contrast, the new districts are designed to include everyone, equally, in the democratic process. Whites still enjoy more than their fair share of representation: While blacks constitute 22 percent of North Carolina's population, only 2 of 12 districts -- 17 percent -- are predominantly minority. In addition, the 12th district is less segregated, at 57 percent black and 43 percent white, than any Congressional district previously drawn in the state. To call it segregated, while calling a district with the numbers reversed integrated, defies logic.

The racial gerrymandering charge is similarly specious. Districting has always been politically driven. Districts are drawn to reflect a community of shared values, to consolidate various kinds of support or to protect an incumbent. And Congress and the courts have explicitly required the creation of majority/black districts to remedy the effects of longstanding discriminatory exclusion.

"If 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," wrote Justice Stevens in dissent, "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.... A contrary conclusion could only be described as perverse."

Shaw also created a new and subjective cause of action based on district shape. Countless oddly shaped districts exist across the country. For example, one fishhook-shaped district in North Carolina was drawn decades ago to protect a white incumbent's turf. The courts have never had any problem with such irregular borders. Wrote Justice White in his dissent in Shaw, "[a] regularly shaped district can just as effectively effectuate racially discriminatory gerrymandering as an odd-shaped one. By focusing on looks rather than impact, the majority immediately casts attention in the wrong direction -- toward superficialities of shape and size, rather than toward the political realities of district composition."

In August 1994, the district court panel, reviewing the North Carolina districting plan under the new standard established by Shaw, upheld it as constitutional. That decision has been appealed back to the Supreme Court.

Meanwhile, opponents of voting rights are questioning the propriety of all remedial race-conscious districting. Predominantly minority Congressional districts in Florida, Georgia, Louisiana and Texas are now being challenged, and state and local governments around the country are under siege as well. Many of these cases bear little resemblance to the facts in North Carolina. In Cincinnati, for example, a city where there are no predominantly minority districts, a judge cited Shaw in upholding an at-large election system. Several federal courts have struck down oddly shaped, predominantly minority districts while upholding the equally odd, white districts next door that were drawn to protect incumbents.

Since Shaw, the Supreme Court has continued to chip away at voting rights, handing down two more damaging decisions at the end of its 1994 term. In Holder v. Hall, the Court upset an ACLU lower court victory by upholding the single commissioner form of government in Bleckley County, Georgia -- despite solid proof of minority vote dilution. The Court even noted that "the District Judge stated that, having run for public office himself, he `wouldn't run if [he] were black in Bleckley County.'" On the same day, the Court ruled against minorities in a Florida redistricting case. In Johnson v. DeGrandy, the Court rejected a Section 2 challenge, despite continuing discrimination and white bloc voting on the ground that the number of predominantly minority districts was "roughly proportional" to minorities' share in the population.

More frightening than the Johnson decision was the position staked out by Justices Thomas and Scalia, who argued that Section 2 applied only to vote denial, not to vote dilution -- a position that flew in the face of established precedent and the legislative history of the Voting Rights Act. Three times, in his dissent, Justice Stevens called their view "radical." If adopted, it would amount to virtual repeal of Section 2 and would threaten to erase most of the gains made in minority office holding.

Against this backdrop, the two suits before the Supreme Court this term are potentially explosive. Both challenge majority/black Congressional districts created in Georgia and Louisiana after the 1990 reapportionment, and since Shaw was based on the Fourteenth Amendment, not on the Voting Rights Act, Congress will not be able to step in and repair the damage as it was able to do with the Bolden disaster of 1982. This time, the Court will have the final word, and if it continues on its present course the result could be catastrophic.

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Vernellia R. Randall
Professor of Law
The University of Dayton
School of Law
Dayton, OH 45469-2772
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