"Ending racial gerrymandering"
[Originally appeared in the New York Post, July 2, 1993]
The joke about North Carolina's 12th Congressional District is that if you drove down I-85 with your car doors open, you'd kill everyone in it.
Tarheel lawmakers used a filament of land 160 miles long to string together portions of scattered Piedmont cities. The idea was to gather enough black voters to elect a black representative, and it worked. In the eastern part of the state they produced a second black-majority district whose shape recalls a bug splattered on a windshield. The state's remaining districts variously resemble a pterodactyl, a rag doll, a broken nutcracker and the lymphatic system of a chipmunk.
On Monday, the Supreme Court rubbed its eyes and said: When you do this sort of thing, please be prepared to explain why. By a vote of 5-to-4, it said blatant racial gerrymandering -- already clearly banned when it harms minority interests -- does not become immune from Constitutional scrutiny simply because it purports to help them.
Until this week's ruling in Shaw v. Reno, all the momentum had been toward racially obsessive line-drawing. In recent New York districting battles, for example, the goal of maximizing minority strength, under threat of Voting Rights Act lawsuits, has overridden almost every other value, such as holding neighborhoods together or tracking borough lines and other natural boundaries.
When individuals get treated as mere units in racial marching teams, dehumanizing touches are inevitable. Black New Yorkers who lived too far from designated black districts were said to be "wasted". Planners fretted over the Hispanic "dispersion problem", this being the inconvenient tendency of many Hispanics to live mixed in among other New Yorkers without ghettoizing.
It seemed that before long modern computer-tracking technology would overcome the last such obstacles and allow districting lines to invade apartment houses and perhaps even homes and bedrooms, bisecting the Sealy Posturepedics of interracial couples.
South Africa's parliament has long reserved seats for Asian Indians, voters of mixed race, and so forth. But this country used to recognize segregation-in-voting as an obstacle to racial amity.
No one doubts that if the North Carolina legislature had produced its Jackson Pollock map with the declared aim of shifting power toward whites, as opposed to blacks, the Court would have struck it down. In a 1960 case, the city of Tuskegee, Alabama had altered its boundaries "from a square to an uncouth 28-sided figure" so as to exclude blacks. The Court struck down the remap. Other cases point the same way.
Of the four dissenters, Justice John Paul Stevens is the most explicit: he says there's an OK sort of racial gerrymandering, which helps minorities, and a non-OK sort, which doesn't. Justices Harry Blackmun, David Souter and Byron White offer slightly different arguments, which boil down to much the same thing.
But a court majority decided that equal protection protects both ways, thus sending some diversity buffs into conniption fits. The New York Times, in a remarkably intemperate editorial, claimed to see "a full-scale assault on the Voting Rights Act" intended to "punish" blacks and "sustain all-white politics". And it personalized the issue into an attack on Justice Sandra Day O'Connor, who wrote the majority opinion, for her supposed "willful disregard" of history, calling her arguments "disingenuous and ahistorical", "surreal", and so on.
"The civil rights community", it proclaimed, "should bring all its political leverage and legal expertise to bear against" this monstrosity -- a marked departure from the usual talk about the need to respect the law of the land once the Court has spoken on a constitutional issue.
Earth to Planet Times: you got off easy. The Shaw decision is quite narrow on its face, applying only to cases where district lines are so "bizarre" as virtually to advertise on billboards that everything other than race has been ignored. The Court earlier upheld a Brooklyn plan, challenged by Hasidic plaintiffs, where the racial factor was present but less egregious.
If it were up to some of us, the Court would go a lot further to question voting-law doctrine. It might ask, for example: why is the racial mix that's considered mandatory in school districting prohibited in voter districting, and vice versa? Why not provide that any arrangement required for the one is at least okay for the other?
The most important part of the Shaw ruling isn't the immediate practical effect, but O'Connor's calm, yet forceful, language. "Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions," she warns. "Racial classifications of any sort...reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin."
Those words may bring her flak from a few predictable quarters -- but they ought to make her the heroine of the hour for the rest of us.