The Magazine

Race to the Bottom

Jul 21, 2003, Vol. 8, No. 43 • By DAVID TELL, FOR THE EDITORS
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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."