Sunday, May 6, 2001

No congressional district has been subject to more litigation than North Carolinas 12th. Four times since 1993 it has been the subject of a Supreme Court decision, most recently last month in Easley vs. Cromartie. This time the district, repeatedly challenged as an unconstitutional racial gerrymander, survived the judges gaze. The litigation is finally over, but the story it tells is revealing, and the Easley decision itself is troubling.

The original purpose of the 1965 Voting Rights Act was to provide access to the polls for Southern blacks. Over time, it assumed a new purpose that of ensuring the election of black (and Hispanic) officeholders. Toward that end, it was deemed necessary to maximize minority voting strength. Racial districting was the result, with lines drawn to create districts with high percentages of minorities, a majority of voting-age minorities wherever possible.

When it came time to redistrict in the wake of the 1990 census, the Republican Party became aggressive supporters of racial gerrymandering. Republican admiration for racial districting had an obvious explanation: Pack enough minorities into their districts, and the surrounding districts will be whitened. If minority electoral chances were improved, so were the GOP´s, with those of moderate Democrats diminished. The Congressional Black Caucus and the Republican Party finally had an issue they could agree on.

Responding to Bush Justice Department´s demands for consolidating black voters, the North Carolina legislature in 1992 created the 12th a 54.7-percent-black district that took in parts of Durham before snaking west and southwest to Gastonia. That the district had been drawn on the basis of race was beyond argument: At one point only the asphalt of Interstate 85 connected two black communities.

Two residents of Durham, one a professor at the Duke Law School and both moderate Democrats, felt disenfranchised and took the 12th District to court. Their complaint was novel: It questioned whether the district, even though it had been demanded under the Voting Rights Act, violated the 14th Amendment´s promise of equal protection. In 1993, in a case called Shaw vs. Reno, the Supreme Court said the complaint could be heard, and three years later the court declared the 12th District unconstitutional.

In 1997, a new 12th was drawn one reliably Democratic but with a lower (47 percent) black percentage and less far-flung, stretching from Greensboro to Charlotte. This redrawn 12th District was the one at issue in the Easley decision handed down last week. The new district was struck down by a lower court, but now the Supreme Court has said no, the 12th is OK. But is it?

The Shaw case marked the beginning of the court´s concern about using race to draw voting districts. The court has refused to say race may never be taken into account, only that it may not be a predominant factor. In the Easley case, the court ignores what can only be described as smoking-gun evidence that the North Carolina legislature indeed made race a predominant factor: an e-mail from the drafter of both the 1992 and 1997 plans to senators in charge of the redistricting.

The e-mail reports: “I have moved Greensboro Black community into the 12th, and now need to take … 60,000 out of the 12th.” If this is not evidence of targeting voters and shifting district boundaries on the basis of race, what is?

The Easley decision provides guidance for legislatures who soon will be redistricting: Race is not an unconstitutionally predominant factor when a legislature can see black voters are more likely to vote for Democrats than white voters are and therefore includes them within a district it intends to make safe for a Democratic incumbent. Legislatures thus would appear to have an easy way to hide racial motive: Say they acted for political reasons since the most reliable Democratic voters are blacks.

Unfortunately, there will be pressure on state legislatures to act for racial reasons even as they now have a court-sanctioned means of concealing them. This pressure will come from the Congressional Black Caucus and the civil rights lobbies, and, if the son is like the father in this matter, it may come from the Justice Department. In any event, it will definitely come from Republicans, since Tom Davis, chairman of the National Republican Congressional Committee, has promised to sue any state that attempts to reduce the minority percentage of even one district´s registered electorate. “We have attorneys,” he says.

The only good thing that could come from those attorneys is new litigation that would invite the court to think again about the sanction it has lent to racial districting.

Terry Eastland is a free-lance writer specializing in law and politics.

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