TRB from Washington

The budget stalemate has quickened Democratic hopes and Republican fears of a new congressional majority in 1996, but the fate of both parties is more likely to be sealed by the latest judicial battles over racial gerrymandering. Faithfully applying the Supreme Court's recent command that race can't be the "predominant factor" in districting decisions, a federal appellate court last week proposed to eliminate two of Georgia's three majority black congressional districts. Although embattled white Democrats are hailing the decision as a lifeline, it may only accelerate the realignment of the South and help propel the Republican Congress into the next century.

If the ghost of Lee Atwater were raised from the grave, it would cackle at the Republicans' knack for surpassing themselves in exploiting racial politics. In the 1980s, conservative Republicans forged a cynical alliance with black Democrats. Brandishing the Voting Rights Amendments of 1982, the Bush Justice Department required state legislatures (who are responsible for drawing new congressional districts every ten years) to create as many minority districts as possible after the 1990 Census. This deprived white Democrats of their most loyal constituents and contributed to massively polarized racial bloc voting that pushed white Southerners perhaps irrevocably into the party of Lincoln. In 1995, having achieved their realignment, Republicans now have the luxury of calling for the dismantling of the minority districts they recently insisted were compelled by law. And the color-blind Supreme Court has been happy to oblige.

The effects of racial redistricting on the Republican realignment are hotly contested; but Carol Swain of Princeton University conservatively estimates that the creation of fifteen black and eleven Hispanic districts after the 1990 Census cost the Democrats a total of seventeen seats in the last two elections. In Georgia, the shift was especially dramatic. Before the 1990 reapportionment, Georgia was represented by eight white Democrats, one black Democrat and Newt Gingrich. After reapportionment, Georgia gained one new seat and two new minority districts. The delegation now consists of eight white Republicans and three black Democrats.

On December 13, the U.S. Court of Appeals in Georgia proposed to eliminate two of the oddly shaped majority black districts and to replace them with six neatly shaped, majority white districts. By dispersing the most reliable Democratic voters, the Georgia court's plan could give white Democrats a chance to recapture the seats they lost in 1992 and 1994. But it may be too late to staunch the Republican tide. In the 1994 midterm elections, Southern white voters favored Republican House candidates by a margin of 65 percent to 35 percent. Based on a computer analysis of the new map, the Georgia Republican Party estimates that it would gain twelve points in one of the current black Democratic districts and twenty-six points in another. If the court's plan is, in fact, implemented, the Georgia delegation after the next election might conceivably consist of ten white Republicans and one black Democrat.

In other Southern states, the partisan effects of the Supreme Court's new standards could be similarly extreme. On December 5, the Court heard arguments about the constitutionality of minority districts in Texas and North Carolina. In Texas, two neatly shaped minority districts could have been drawn in Dallas in 1990, if only the Democratic incumbent in the adjacent district, Martin Frost, hadn't insisted on retaining black voters to protect his seat. If the Supreme Court strikes down the Texas plan, and tells the Texas legislature to create more compact districts, Frost could well be displaced by a Republican.

As a political strategy, of course, the attempt to protect Democratic incumbents with creative racial gerrymanders proved to be an ironic and embarrassing failure. In North Carolina, Democrats held an eight to four advantage before redistricting; by 1994, Republicans held an eight to four edge. But the Supreme Court's refusal to acknowledge that racial gerrymanders and partisan gerrymanders are two sides of the same coin makes its color-blind jurisprudence especially slippery.

In the Miller case last June, Justice Kennedy announced that only "traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests," will pass constitutional muster. But there is something suspiciously selective about Kennedy's list of "traditional districting principles." In fact, race was not the "predominant factor" in the minds of the Democratic state legislators who created the oddly shaped districts in Texas and North Carolina; if it had been, the districts could have been as compact and graceful as Faberge eggs. Instead, the legislators were trying to balance four distinct and largely irreconcilable goals: first, complying with the Supreme Court's one-man-one-vote requirement, which means drawing districts with precisely equal numbers of voters; second, complying with the Voting Rights Amendments of 1982, which means creating districts where blacks and Hispanics constitute a majority; third, protecting white Democratic incumbents, which means retaining their base of loyal black voters; and, finally, creating districts that are relatively compact, which means drawing shapes that strike Justice O'Connor as pretty rather than "bizarre."

Even a cartographer with the skills of Magellan can't achieve all four of these goals at the same time. By exalting the aesthetic virtues of neatly shaped districts, and refusing to relax the one-man-one-vote requirement, the Supreme Court has implicitly forced state legislatures to sacrifice the other two goals--namely, protecting Democratic incumbents and complying with the Voting Rights Act.

But where in the Constitution does it say that creating pleasantly shaped districts is a "traditional districting principle," but protecting incumbents isn't? Nowhere. In fact, only a generation ago, the Burger Court reached precisely the opposite conclusion. In 1973, the Court declared that incumbency protection was a long tradition in American politics, and it might justify minor population variations among the districts. During the same year, the Court said explicitly that "a State's preference for pleasingly shaped districts can hardly justify population variations." The only thing that has changed between 1973 and 1995 is the composition of the Court.

By the next Census, of course, the Republican realignment may be so far advanced that the GOP will control the Southern state legislatures and, with them, the next round of redistricting. "Soon we'll be able to do the good old-fashioned kind of gerrymandering which involves protecting your incumbents," says conservative strategist Grover Norquist. "Democrats obsess about race. We don't." Not this decade, anyway. And perhaps after the new districts are drawn in the new millennium, the conservative justices will suddenly decide that protecting incumbents is a "traditional districting principle" after all.