The National Law Journal
February 15, 1999
‘Bizarre’ Districts’ Double Standard
By Richard R. Buery Jr.
On Jan. 20, 1999, the Supreme Court heard arguments in Hunt v. Cromartie, No. 98-85, a challenge to North Carolina’s 12th Congressional District, represented by black Democrat Melvin L. Watt. This is at least the ninth time since Shaw v. Reno, 509 U.S. 630 (1993), that the court will consider whether a state violated the Constitution by giving too much consideration to race in drawing district lines. The Court should take this opportunity to reconsider Shaw, which is based on flawed legal doctrine and has proved unworkable in operation.
The case was a direct attack on the progress made by black politicians after the 1990 census. At that time, the Justice Department, pursuant to its Voting Rights Act authority, began requiring covered jurisdictions to create more majority-minority districts. As a result, 40 blacks were elected to congress in 1992, up from 27 in 1990. They included Mel Watt and Eva Clayton, the first black North Carolina representatives since 1901.
White voters began challenging the new districts, criticizing them for having bizarre shapes. Congressman Watt’s 57 % black district was 160 miles long and sometimes no wider than Interstate 85. Plaintiffs claimed that the primary reason these districts were drawn was to elect blacks to Congress and that they therefore denied equal rights to whites.
In Shaw, a deeply divided Supreme Court agreed, ruling in effect that district lines may violate the Constitution if drawn with the main purpose of increasing minority representation. After a district court trial, the Supreme Court ruled that District 12 was unconstitutional. See Shaw v. Hunt, 517 U.S. 899 (1996).
North Carolina redrew the district. It was now 89 miles shorter and just 47 % black. Nonetheless, a federal district court granted summary judgment to plaintiffs, ruling that legislators remained inappropriately concerned with black representation. Cromartie is an appeal from that decision.
Shaw rests on faulty legal reasoning. The majority likened the district to political apartheid. The analogy is odd: The district is among the nation’s most diverse. More important, the court never adequately identified what harm the plaintiffs had suffered. White voting strength was not diluted; the plaintiffs only injuries were their minority status in the district and the race of their Congressman. But the Constitution does not recognize such injuries.
Indeed, just 16 years earlier, in United Jewish Organizations of Williamsburg, Inc. v. Carey, 430 U.S. 144, 179 (1977), the court had rejected a similar challenge in Brooklyn because the creation of a majority-black district there did not minimize . . . white voting strength.”
A Matter of Perception
Shaw creates racial double standards. For example, white plaintiffs need not suffer an injury to sue. Living under a black majority (or even a large black minority) is sufficient. In addition, only majority-black districts are criticized for their shapes. Republican Congressman E. Clay Shaw Jr.’s 83 % white Florida district has never been challenged. Yet that district is longer than Watts and less than three miles wide. And the Supreme Court has approved Georgia’s 88 % white 11th District, which, like North Carolina’s 12th District, is stretched along Interstate 85. See Abrams v. Johnson, 117 S. Ct. 1925, 1941 (1997).
What is more, the Supreme Court has failed to provide adequate guidance as to how Shaw should work. For example, while states are permitted to redistrict with consciousness of race, (Bush v. Vera, 517 U.S. 952, 958 ), race may not be the predominant factor, (Miller v. Johnson, 515 U.S. 900, 916 ). The difference between the two remains a mystery.
This lack of doctrinal guidance has left states subject to the inconsistent whims of district judges, forcing the Supreme Court into micro-management. This is the third time in six years that Rep. Congressman Watts’ district has come before the court. The 2000 census is nearly upon us. Unless something is done, state governments, fearing another decade of litigation, will start to cede their districting responsibility to the courts.
In Cromartie, the court has three options. It can rule without extended comment, leaving trial courts to flounder ahead. It can try to provide further guidance as to how to implement Shaw. Previous efforts to this have failed, and I seriously doubt the court has any real guidance to offer. Finally, the Court can do the honorable thing: recognize the failure of its ignoble experiment and put Shaw to sleep.
May it rest in peace.
ABOUT THE AUTHOR
Richard R. Buery, Jr. is a Staff Attorney at the Brennan Center for Justice at New York University School of Law. He co-authored an amicus brief filed in Cromartie on behalf of the Brennan Center, the Asian American Legal Defense and Education Fund, and the Puerto Rican Legal Defense & Education Fund.