Supreme Court's Double Standard: Gerrymander Hypocrisy

Article excerpt

Racial double standards are nothing new in American law, but the Supreme Court's voting rights jurisprudence has turned farcical. State legislators redrawing Congressional and state legislative districts in the 1990s now carry both a license and a warning from the Court. The license, granted for decades, is to draw far-flung squiggly lines all over the map in order to guarantee the legislators' re-election or the re-election of incumbent white U.S. House members. The warning, issued in the Court's 1993 Shaw v. Reno decision, is not to draw any such "bizarre" districts with the purpose of creating African-American or Latino political majorities.

These two Supreme Court positions are on a logical collision course. From the day it was decided, Shaw looked deeply suspicious, since it imposed strict scrutiny on only those oddly shaped districts where African-Americans or Latinos are in a majority. The Court had never before found that the Constitution required districts to have certain shapes, sizes or looks. District appearance was a question for the states. Now, in the name of tidy district lines and fighting what Justice Sandra Day O'Connor called "political apartheid" (a term never used by the Court to describe slavery, Jim Crow, poll taxes, literacy tests or white primaries), the Court cast doubt on dozens of racially integrated districts represented by blacks and Latinos.

In the wake of Shaw, the Court's disparate treatment of white incumbents and black and Latino majorities has only grown more glaring. Several federal courts have struck down oddly shaped districts with black and Latino majorities and representatives, while upholding oddly shaped districts next door where white majorities have elected white politicians to office. In the illustrative case of Vera v. Richards last August, a panel of three Republican judges threw out as racial gerrymanders two majority-black Congressional districts and one majority-Latino district in Texas, solemnly invoking Martin Luther King Jr. along the way.

Meanwhile, the same panel categorically rejected challenges to majority-white districts whose perimeters looked every bit as peculiar as those of the minority districts. The panel was not disturbed that House incumbents from Texas "were actively involved in the redistricting process" or that they were so influential in getting districts drawn for "incumbency protection" that all but one of them had been re-elected in 1992. Neither were the judges troubled by the fact that the minority districts appeared contorted precisely because white Democratic incumbents, looking for liberal votes, took big geographic bites out of minority communities.

By blessing the entrenchment of white incumbents and wiping out black and Latino majority districts, the Texas court is only following the perverse logic of Supreme Court doctrine. The equal protection clause of the Fourteenth Amendment, enacted in 1868 to dismantle white supremacy, has been twisted by the Court to mean that African-Americans and other minorities may not form a numerical majority in any district unless they are in communities that are geographically compact and residentially isolated. Political apartheid, indeed.

As a matter of democratic theory, the couple of dozen districts drawn to facilitate black and Latino majorities are far more defensible than the hundreds of districts drawn to protect particular white incumbents. …