The Magazine

Race to the Bottom

Jul 21, 2003, Vol. 8, No. 43 • By DAVID TELL, FOR THE EDITORS
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WE ARE LIVING IN another low, dishonest decade, it seems--at least where the intersection of race and American electoral politics is concerned.

Following the 1990 census, the Republican National Committee--determined to press its partisan interests in forthcoming state-by-state congressional reapportionment efforts, and apparently immune to ordinary human embarrassment--fixed on a plan to resegregate the American voting public, especially in the South. Armed with never-before-available precinct-level demographic data from the Census Bureau, GOP computer experts produced revised state and federal election maps featuring bizarrely contorted boundary lines designed to encompass as many super-concentrated black districts as possible. The theory was simple, plausible, and thoroughly repulsive: African Americans are the Democratic party's most reliable, bloc-like constituency. If they could be isolated in a slightly larger but still-small number of "majority-minority" electoral jurisdictions across the country, then all the remaining, thus-Caucasianized districts would become that much more Republican.

Every major political institution in America acquiesced in or outright abetted this scheme; the embarrassment does not end with the RNC. Civil rights groups like the NAACP and ACLU--insisting that "black political interests" can adequately be represented only by black politicians, whom only black voters can be counted on to support--aggressively promoted GOP-sponsored, race-based redistricting proposals in state after state. During the administration of George Bush the elder, states that refused to embrace such bald-faced, apartheid dogma were subjected to dubious but protracted legal attack--charged with violating the 1965 Voting Rights Act--by the Department of Justice. Which continued to support the so-called "max-black" reapportionment strategy even after Bill Clinton became president--the Democratic party apparently having decided to abandon its marginal white incumbents rather than deny its activist minority base a few more elective-office victories.

And the federal courts? To a great extent, the judicial branch of government signed off on all this cynicism. No, ruled the Supreme Court's "conservative" 5-4 majority in 1995, Georgia, for example, may not enact a redistricting system founded so obviously and exclusively on racial considerations. The Voting Rights Act does not, in fact, require that electoral boundaries be drawn simply in order to expand membership in the Congressional Black Caucus, and the Fourteenth Amendment forbids such nakedly pigment-conscious ploys in any case. But if the pigment-conscious ploy wears the right kind of fig leaf, the same Supreme Court majority would subsequently explain--if the maps can be made to look reasonably neat and sensible, and if a state can muster a straight-faced claim that its new "majority-minority" districts exist only as the coincidental byproduct of some traditionally accepted political enterprise, like unvarnished partisan gerrymandering...well, that's pretty much okay. In short: A measure of discretion is necessary, and a thumbs-up from the NAACP is nice, too, but at the end of the day, yes: States like Georgia may transfer their black citizens out of mixed-race congressional districts and into ballot-booth Bantustans at the behest, and for the benefit, of Republican campaign officials.

Those were the 1990s.

Now, a brand-new decade has dawned. And a brand-new census has been completed, triggering a brand-new reapportionment effort. In which effort the Democratic party, no longer confident that trading away "white" swing districts for safe "majority-minority" seats elsewhere in the South is such a wise idea, has adopted what appears to be a brand-new position on "max-black" election-mapping techniques. Democratic regulars, African-American officeholders very much included, now resolutely oppose such stuff, and are everywhere working to reverse its past effects. We might be prepared to applaud them for it.

Except that nothing else has changed, really. A shameless, openly acknowledged racialism still suffuses the redistricting process. Both in principle and in practice, the whole business remains just as cynical, just as dishonest, and just as repulsive.

Take Georgia, again, for example. In the late summer of 2001, that state's Democratic legislature approved, and Georgia's Democratic governor signed into law, revised federal and local election-district maps that systematically shifted "surplus" African-American voters from previously "majority-minority" districts into fairer-complexioned jurisdictions represented by fairer-complexioned--and vulnerable--Democratic incumbents. Before this reapportionment could take force, however, Georgia, a state specifically singled out for ongoing federal oversight by the Voting Rights Act, was obliged to seek clearance from Washington. And under Section 5 of the Act, according to governing Supreme Court precedent, it is illegal for Georgia to advance any redistricting scheme that threatens "a retrogression in the position of racial minorities with respect to their effective exercise of the franchise."

Exactly what constitutes the "effective exercise" of aggregated "minority" voting--or how and on what basis, for that matter, federal law might presume to identify preferred "minority" election results--has never been determined. But this much is clear: Election results, not just race-neutral ballot access, are at issue; Georgia may do nothing to reduce the likelihood that "minority candidates of choice" actually win their races.

In April 2002, it fell to a panel of the U.S. District Court in Washington--all three judges appointed by Democratic presidents, interestingly enough--to decide whether Georgia's newly enacted state-senate maps passed muster under Section 5. The Bush Justice Department said no. Several previously "safe" districts held by African-American incumbents had seen their black voting-age populations whittled down to bare majority status, a level insufficient to protect "minority candidates of choice," who, the president's lawyers all-but-directly announced, must necessarily be minorities themselves. The court was not prepared to accept such a literal--and vulgar--view of things. But neither was the court prepared to agree that Georgia had carried a required burden of proof that its senate maps were non-retrogressive. "The evidence in this case," the state's attorney general had submitted, "is absolutely uncontradicted that minority voting strength is enhanced by the Democratic strategy...to maintain [a] Democratic majority in the Senate." Oh, no you don't, ruled an appalled Judge Emmet G. Sullivan (joined by Judge Harry T. Edwards, sitting in from the District of Columbia's parent circuit court):

"[I]t does not follow that anything that is good for the Democratic Party is good for African American voters--at least, within the context of this court's Section 5 inquiry"--so read the icy, clenched-teeth conclusion of Sullivan's long, meticulously argued opinion. "The court emphatically rejects [this] notion. . . . The Voting Rights Act was not enacted to safeguard the electoral fortunes of any particular political party."

Or was it?

A few weeks back, on June 26, the last working day in its spring term, the Supreme Court resolved Georgia's appeal from Judge Sullivan's decision. Both parties to the suit had offered the justices especially crass accounts of the relevant facts and law. Georgia's plan, the Justice Department complained at oral argument, establishes senate districts in which it's possible "the black vote could swing the balance between a white Republican and a white Democratic candidate." But there wouldn't be a "high enough black population to create a plausible likelihood of electing black candidates of choice"--a legal standard the Bush administration seems to think no white candidate of either party is qualified to satisfy. Nonsense, rejoined Georgia: "Black candidates of choice" and "Democrats" are indistinguishable categories. The state's new senate map "enhances black voting strength because . . . you're shifting the black votes into those other districts, and [the] potential is enhancing, the potential of getting someone the Democrats prefer who happens to be white."

Thereby asked to decide which political party is better for black people, as a matter of federal law, the Supreme Court, rather than issue an indignant and richly deserved how-dare-you to all concerned, has punted, smiling on the lurid worst of each side's world. The Court's pro-Republican ruling from back in 1995 is reaffirmed. "In order to maximize the electoral success of a minority group," sayeth Justice O'Connor, on behalf of the same old 5-4 "conservative" majority, a state like Georgia may still choose to create "a certain number of 'safe' districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice," even though "such a plan risks isolating minority voters from the rest of the state"--and, presumably, making Tom DeLay a happy man. Alternatively, however, the Voting Rights Act permits a state to "risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters." Those would be Democratic representatives, Justice O'Connor points out: All the senate districts into which Georgia proposes to shuffle its African-American playing pieces enjoy Democratic registration numbers over 50 percent.

Incidentally, the High Court's four dissenting "liberal" justices, led by David Souter, side with the Bush administration. But not because they think black people can only "effectively" be represented by black congressmen, you understand. Any old Democrat will do. It's just that Souter & Co. are concerned that Georgia hasn't done enough to guarantee that emigrant African-American voters will receive such Democratic representation in their new, swing districts. A Republican--gasp!--might always win. And the Voting Rights Act, says Souter, demands that "minority voters will have effective influence translatable into probable election results comparable to what they enjoyed under the existing district scheme."

Whatever. Georgia v. Ashcroft is vacated and remanded to the district court, where the judges must now conduct further proceedings consistent with yet another dismal, racialist retrogression in the law and politics of the United States.

--David Tell, for the Editors