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April 18th, the Supreme Court issued its opinion in Hunt
v. Cromartie, a lawsuit alleging that North Carolina's
12th Congressional
District had been racially gerrymandered. Commentators can be forgiven
for pouncing on every word in this opinion, since it is an important
card just dealt in a very high-stakes game: redistricting after
the 2000 census.
In its 5-4
opinion, a majority of the Court concluded that race had not been
the "predominant factor" in drawing the district. The
four dissenting justices disagreed, finding that the trial panel's
conclusion that race was in fact the predominant factor "was
permissible, even if not compelled by the record."
Many news stories
and the commentators quoted in them have quickly suggested that
the majority opinion has given a green light to racial gerrymandering
as the redistricting process begins. But this is not true, and reflects
the wishful thinking of those who have supported all along the use
of race in drawing districts.
The majority
opinion did not, and did not claim to, change existing law. Indeed,
it would have been quite surprising if it had, since Justice O'Connor,
who voted with the majority this time, has voted in many earlier
cases against racial gerrymandering.
Nor, for that
matter, had the dissenting justices always voted to affirm lower-court
findings of racial gerrymandering. Indeed, in this same litigation,
the four dissenters — joined by Justice O'Connor — voted in 1999
to overturn a lower-court conclusion that the 12th district had
been unlawfully drawn. It is amusing that this case has found its
way to the Supreme Court four times over the past decade, and every
time the trial court's findings were overturned, whether it
ruled for or against the plaintiffs. And you thought being a federal
judge was fun.
The Supreme
Court's most recent decision reflected a difference in opinion among
the justices about whether there was sufficient evidence to find
that race had been the predominant factor in drawing the district's
boundaries. A majority found that, all in all, that was not a fair
conclusion; four other justices found that, all in all, the lower
court's decision was defensible.
Thus, state
and local officials remain on notice that racial gerrymandering
is illegal and that, if they rely on race in deciding how to draw
districts, they risk having those districts struck down as unconstitutional.
This is as it should be. Racial gerrymandering balkanizes Americans
and removes an important incentive for interracial coalition building.
On the other
hand, this is not to say that the most recent tea leaf in the Hunt
litigation isn't colored and shaped a little differently from its
predecessors.
As Justice
Thomas's dissent, joined by Chief Justice Rehnquist and Justices
Kennedy and Scalia, points out: "[T]he District Court was assigned
the task of determining whether, not why, race predominated"
(his emphasis) since, after all, "racial gerrymandering offends
the Constitution whether the motivation is malicious or benign."
Thus, "It is not a defense that the legislature may have drawn
the district based on the stereotype that blacks are reliable Democratic
voters."
Or, as the
American Civil Rights Institute's Ed Blum points out, what if the
shoe were on the other foot and black voters' likely politics were
being used to gerrymander against their controlling a majority
in any district?
The majority's
contrary notion that it is all right to take race into account so
long as it is being used only as a proxy for something else is something
that ought to give everyone pause. This used to be called stereotyping.
Suppose a policeman
says that, yes, he targets black drivers, but not because he has
anything against blacks per se — he's just playing the odds and
using race as a proxy for greater likelihood of criminality. Not
something that the ACLU will like. Or suppose a college says that,
yes, it targets African Americans for admissions, even when they
have lower academic credentials, but only because it thinks that
African Americans are more likely to add to the campus's "diversity."
Not something that a non-ACLUers would like. The majority's reasoning
is unlikely to carry beyond the redistricting area, where racial
and ethnic line-drawing are so historically entrenched that Justice
O'Connor despairs of insisting that such considerations be banished
from the political backrooms.
At the very
end of its opinion, the majority warns that even if plaintiffs can
show that their political objectives could be achieved without considering
race, they also have to show that the nonracial approach "would
have brought about significantly greater racial balance." Talk
about just not getting it. The critics of racial gerrymandering
are not trying to achieve or avoid any particular degree of racial
balance — to the contrary, they don't want race to be a consideration
at all.
A recurrent
dispute in civil-rights law is between a plaintiff who asserts,
"You discriminated against me because I'm X," and the
defendant who answers, "It's not that you're X, it's that you're
Y," and then the court has to resolve the question of whether
X and Y are so intertwined that the defense should be rejected.
Usually the liberal wing is inclined to reject the defense if X
and Y are at all close; in Hunt, ironically, it buys the
defense even though the defendant admits that it is using X (race)
as a proxy for Y (voting behavior). It is as if an employer admitted
not only that he had a hiring criterion that had a disparate impact
on the basis of race, but that he used race directly to decide whether
that criterion was met!
A final irony
in Hunt is that it is a liberal majority insisting that,
just because there are racial disproportions, doesn't prove that
there has been discrimination. Very true, but this is generally
a conservative theme.
So beware the
gerrymander, all you pols out there. The Center for Equal Opportunity,
the American Civil Rights Institute, and a variety of other litigating
and non-litigating organizations have been mailing letters and legal
opinions over the past year warning you not to engage in race-based
redistricting. The Supreme Court's recent case doesn't change the
law and, to the extent it adds some nuance, it isn't persuasive.
Even if the Court may allow you to gerrymander in some cases, that
doesn't mean you should.
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