Court Watch

On the first day of the new term, the Supreme Court revisited the question that undid Lani Guinier: How much racial gerrymandering does the Constitution permit, and the Voting Rights Act require? In her opaque majority opinion in Shaw v. Reno last June, Sandra Day O'Connor flirted with, and then retreated from, the argument that the Constitution always forbids states from carving out black and Hispanic electoral districts, even as a remedy for past discrimination. Over the past three months, however, lower courts and litigants have seized on O'Connor's dramatic rhetoric about "racial apartheid" to challenge the premises of the Voting Rights Act itself. In two related Florida cases, the Court now has the opportunity to articulate a better principle: the Constitution does not forbid the creation of minority districts, but the Voting Rights Act does not always require it.

Much of the confusion flows from Congress's refusal to make its intentions clear when it amended the Voting Rights Act in 1982. The ostensible purpose of the 1982 amendments was to give minorities the power to challenge election systems throughout the country by focusing on discriminatory results rather than on discriminatory intentions. The success rates of minority candidates, Congress declared, would be one way of determining whether minority voters have an equal opportunity "to participate in the political process and to elect representatives of their choice." Somewhat ambivalently, the amendments also disavowed any intention of creating a right of "proportional representation" for minorities.

The racially charged premises of the 1982 amendments came to a head in the Shaw case last June. After the 1990 census, North Carolina proposed to create only one congressional district with a black majority; but the Bush Justice Department demanded two. A less distorted minority district might have been created in the southeastern part of the state, but it would have carved through the power base of Democratic incumbents. To protect their own seats, the incumbents decided instead to create the serpentine I-85 district. The Wall Street Journal compared it to "political pornography"; the Court called it "tortured," "dramatically irregular," "bizarre" and "irrational," and struck it down as a form of "political apartheid."

There is an odd disjunction in Shaw between O'Connor's bold rhetoric and her elusive holding. The opinion is suffused with language that, if taken seriously, would require striking down the amended Voting Rights Act itself. (Antonin Scalia and Anthony Kennedy have toyed with this possibility in the past and are likely to resurrect it in the future.) "Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions," O'Connor writes. But she then refuses to say whether the deliberate creation of minority districts, by itself, violates the Constitution.

The only constitutional value that O'Connor identifies is an aesthetic value. The problem with I-85, she says, is not that it segregates voters on the basis of race, but that it looks bizarre and therefore appears to segregate voters on the basis of race. Like Potter Stewart's definition of obscenity, this is an exquisitely subjective mandate for judges to strike down minority (and only minority) districts that offend their personal tastes. And O'Connor's premise--that the bizarre shape of the I-85 district can only be understood as a racial gerrymander--is puzzling. As Richard Pildes of the University of Michigan notes, the odd shape of the district actually reflects the self-interested maneuvering of white incumbents.

It is also hard to argue that strange shapes represent a departure from "traditional" districting principles. Describing the North Carolina district in Shaw, O'Connor quotes a state legislator's joke: "If you drove down the interstate with both car doors open, you'd kill most of the people in the district." But as Samuel Issacharoff of the University of Texas points out, the joke dates back to the 1970s, and originally described Phil Gramm's weirdly shaped district in Texas.

It is already conventional wisdom to compare O'Connor's opinion in Shaw to Lewis Powell's opinion in Bakke, the affirmative action case. Both seem to say that you can take race into account, as long as you do so subtly rather than overtly. But in fact, Powell's logic is easier to grasp than O'Connor's. Affirmative action programs in universities create individual winners and losers. But redistricting, by definition, affects group interests rather than individual interests; and no white voters in North Carolina claimed that the plan had diluted their votes.

The practical effects of Shaw also look to be more radical than the effects of Bakke. Powell's decision left universities free to engage in racial head counting, as long as they are discreet about it. After Shaw, by contrast, virtually every minority district in the country is now vulnerable to a constitutional challenge. Last July, federal judges rejected proposals to create minority districts in Ohio and North Carolina, although the shapes proposed were hardly unusual. Ignoring O'Connor's aesthetic theory, they invoked her rhetoric about political apartheid. Another federal judge is now deciding whether a black district in Louisiana, created as a remedy for overt racism by past apportionment plans, can survive Shaw.

O'Connor's opinion, in short, threatens to undermine the Voting Rights Act covertly rather than openly, which may be what the conservative justices had in mind. But although her frustration with racial balkanization is understandable, O'Connor is unable to translate the impulse into an intelligible legal principle. In the October 4 cases, the Court will have a second chance. Hispanic voters are challenging Florida's attempt to reapportion its House and Senate seats after the 1990 census. In Dade County, about half of the adult population is Hispanic; and the state legislature proposed to set aside about half (nine out of twenty) of the Dade County House districts for Hispanic majorities. But a Florida judge ruled that even proportional representation is not enough to satisfy the Voting Rights Act. In his view, the Act requires states to create as many safe minority districts as it is possible to create; and there are enough Hispanics in Dade County to make up majorities in two more districts. The U.S. solicitor general, Drew Days, proposes a different reason for creating more districts. In deciding whether Hispanics are proportionately represented in Dade County, he argues, courts should look to the Hispanic population of the state as a whole.

By reversing the decision, and rejecting Days's theory, the justices can re-examine one of the most troubling assumptions of voting rights jurisprudence over the past decade: the assumption that ethnic identity and political identity are always fungible, that all blacks and Hispanics vote alike. It is particularly implausible, as Ruth Bader Ginsburg noted at the oral argument, to suggest that Cuban Republicans in Miami are politically interchangeable with Mexican-American Democrats in Pensacola. By requiring all litigants to prove that minority groups are politically cohesive throughout the disputed area, the Court could avoid the balkanizing stereotypes O'Connor rightly deplores.

The American Jewish Committee is asking the justices to take a more dramatic step. Relying on the arguments of Abigail Thernstrom, the AJC maintains that the Voting Rights Act does not require proportional representation at all; it requires that minorities have an equal opportunity to participate in the political process. Rather than focusing exclusively on whether minority candidates are being elected to office, courts should look to a host of factors--such as whether roads are being built and letters being answered--in deciding whether minorities are shut out of the political process. William Brennan rejected a similar theory in 1986; but the conservatives now have the votes to enact it.

By replacing the cold objectivity of racial head-counting with a more subjective judicial test, the AJC's theory would transform voting rights litigation as radically as Shaw has done. But the argument that the Voting Rights Act does not always require racial gerrymandering is more plausible than the argument that the Constitution forbids racial gerrymandering. If Congress wants to make strict racial and ethnic proportionality the measure of fairness in American politics, it should be perfectly free to do so. But first, let it make its intentions clear.