- The Washington Times - Tuesday, April 24, 2001

The virus of racism last week found sanctuary in the lofty jurisprudence of the United States Supreme Court. A narrow 5-4 majority in Hunt vs. Cromartie (April 18, 2001) blessed the constitutionality of a North Carolina congressional district that was informed in part by racism and in part by noninvidious considerations. According to Justice Stephen Breyer, writing for the court, a little punch of racism in districting that falls short of a knockout is untroublesome, a chilling observation reminiscent of Jim Crow. The benighted Cromartie precedent ensures that the nation will be grappling with institutionalized racism for the ages.
The case originated in North Carolinas fitful attempts to draw its 12th Congressional Districts 1997 boundaries. The state legislature made no finding that past racial discrimination in voting required a boundary remedy to ensure the election of a black candidate; and, it disclaimed any remedial purpose in demarcating the 12th district.
A three-judge federal district court found its boundaries unconstitutionally tainted because of their classification of voters by race in violation of the equal protection clause of the 14th Amendment. The district court emphasized the districts fragmentation of cities and towns, irregular shape, heavy African-American voting population, and, the plaudit of the state legislative redistricting impresario, Sen. Roy Cooper, that the exercise achieved a "fair … racial and partisan balance throughout the State of North Carolina." In other words, a racial quota of black congressmen was in a sidesaddle with non-racial influences, according to Mr. Cooper.
Politicians, moreover, routinely communicate through codes, euphemisms, obliqueness or tacit understandings to disguise racism. That has been a fixed feature of American culture even before independence. The original Constitution eschewed the word "slave" in favor of "three-fifths of persons."
Decisions of the Supreme Court have repeatedly pierced the veil of racism by reliance on what everyone knows but is loath to confess. Thus, in Guinn vs. United States (1915), the court held an Oklahoma franchise law unconstitutional because it relieved white voters of a literacy test required of blacks if their grandfathers had been entitled to vote in 1866, a year when blacks were universally disenfranchised. Chief Justice Edward White found no difficulty in detecting a racially discriminatory purpose, even though concealed in non-racial language. A second and more ingenious edition of the grandfather voting clause was held unconstitutional in Lane vs. Wilson (1939), in which the court upbraided both sophisticated and simple-minded racism.
The City of Tuskegee redefined its boundaries from a square to an uncouth 28-sided figure allegedly to remove all but four or five of its 400 black voters from the municipal rolls in Gomillion vs. Lightfoot (1960). The court underscored that if the allegation was proven, "the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing right to a municipal vote." And in Anderson vs. Martin (1964), the court condemned a Louisiana statute requiring racial designations on nomination papers and ballots as a transparent incitement to racial bloc voting. Moreover, the court lectured, "the race of the candidate bearing upon his qualifications for office."
In contemporary political discourse, racism is communicated more through subtexts than texts by employing phrases like affirmative action, fair representation, or diversity of viewpoint. But to borrow from Shakespeares "Romeo and Juliet," racism by any other name smells as malodorous.
In reversing the district court, Justice Breyer maintained that small doses of racism in districting are not disrelished unless they become the piece de resistance of the political feast, i.e., its "predominant" legislative inspiration. If racism is but one of a cluster of districting lodestars, then the Constitution is unoffended.
But that conclusion repels. Race, the high court has sermonized, is irrelevant to qualifications for office. Thus, government holds no legitimate interest in making race pertinent to any electoral outcome. Conversely, every licit objective of districting can be achieved without a bow to racism. Any racist motivation should thus be unconstitutional, even if layered between more predominant unobnoxious concerns.
Suppose a state legislature declares that a districting plan was fueled 40 percent by anti-black or anti-white racism, 50 percent by incumbency protection, and 10 percent by anti-Semitism. Under Cromartie, the poisonous bigotry passes constitutional muster because unconstitutional prejudice did not predominate the legislatures deliberations.
Experience teaches, nevertheless, that a little bit of racism, like a little bit of knowledge, is a dangerous thing. Would anyone accept the idea that an employer should be permitted to discharge an employee if motivated 40 percent by racial prejudice but 60 percent by dislike of the workers bowties? What about a landlord who refuses to rent driven 35 percent by bigotry and 65 percent by dislike of the applicants repertoire of whistling tunes or political affiliation?
Racism should be taboo whatever its size, shape, or garb. The Cromartie decision should not stand.

Bruce Fein is general counsel for the Center for Law and Accountability, a public interest law group headquartered in Virginia.

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