Birth of a Gerrymander
The Supreme Court can finally bring sanity to voting rights law.
Feb 20, 2006, Vol. 11, No. 22 • By ABIGAIL THERNSTROM
ON MARCH 1, the Supreme Court will hear arguments in a case involving the Texas congressional redistricting plan engineered in 2003 by former House majority leader Tom DeLay. Appellants charge both that the Texas map was partisan districting run amok and that it violated the right of minority voters, under the Voting Rights Act, to elect the candidates of their choice.
On the first matter, court precedents are sparse; the High Court has been understandably reluctant to tackle partisan gerrymandering, with the result that no constitutional standards (beyond one person, one vote) govern the process. But on the second matter, where precedents are numerous and murky, the Court should seize the opportunity to begin restoring intelligibility and common sense to an area of law that seems to have come unmoored from American principle.
That there is work for the Court to do is obvious to anyone familiar with the Voting Rights Act of 1965 and its subsequent amendments by Congress and interpretations by the Department of Justice and the courts. These have brought us to a pass where fairness to minorities has a legal definition so arcane and counterintuitive as to seem like something out of Through the Looking Glass. To underline the need for serious repair work by the High Court, it is worth revisiting one of the key precedents of recent years--Georgia v. Ashcroft (2003)--as well as a private, internal Department of Justice memo leaked to the press shortly before Christmas and revealing department staff-attorneys' tortured attempt to apply the Georgia precedent to the question of the legality of Texas's 2003 proposed redistricting.
WHEN THE VOTING RIGHTS ACT was originally passed, every provision served the same simple aim: to make sure previously disfranchised southern blacks could register and vote. That simplicity proved unsustainable. The year before the act was passed, the Supreme Court had signaled concern with the "inalienable right" of every citizen to "full and effective participation" and "an equally effective voice" in its landmark one person, one vote decision, Reynolds v. Sims. By the early 1970s, protection against the "dilution" of black votes had been incorporated into judicial interpretations of the Voting Rights Act.
When were black votes diluted? In applying the statute, both the Justice Department (the main player) and the U.S. district court for the District of Columbia initially assumed that only black officeholders could fully represent black voters. Thus, black voters had "an equally effective voice" only when a districting plan contained as many safe black seats as could possibly be drawn. That view produced extremes of racial gerrymandering--the infamous spider-shaped districts--that, starting in 1993, ceased to sit well with a majority on the Supreme Court. In Miller v. Johnson (1995), for instance, the Court fretted about states' assigning voters to racially separate districts on the "offensive and demeaning assumption that voters of a particular race, because of their race, 'think alike, share the same political interests, and will prefer the same candidates at the polls.'"
In 2003, in Georgia v. Ashcroft, the Court added another concern to that of racial stereotyping. Perhaps black votes were being "wasted" in what the ACLU approvingly referred to as "max-black" districts. That is, perhaps the goal should be to concentrate only as many blacks in a district as necessary to elect a black representative, then to assign black voters beyond that number to other districts. The concern applied as well to Hispanic districts, Hispanics having been added as a protected group in 1975.
Potentially wasted votes were the central theme of Georgia v. Ashcroft, which involved districting for the Georgia senate. Justice Sandra Day O'Connor's opinion for a majority of five was a classic study in just how lost courts can become when trying to sort out questions of racial fairness and political representation.
In her opinion, O'Connor woke up to the fact that minority "representation" is not so easy to define. Who counts as a "representative"? The question is fundamental, because section 5 of the Voting Rights Act--the provision at issue in the Georgia case--protects black voters from any change in electoral rules or district lines that results in representational "backsliding." The object was to prevent states from changing their electoral rules in ways that chipped away at blacks' political strength. Section 5 requires the southern states (with their history of disfranchising blacks), as well as Texas, Arizona, and scattered counties elsewhere identified by a statistical trigger, to obtain approval ("preclearance") from either the Justice Department or the U.S. district court for the District of Columbia for any redistricting.