Wronging Voting Rights
"Our Constitution is colorblind," Justice John Marshall Harlan wrote 100 years ago in his unambiguous and prophetic dissent to Plessy v. Ferguson, the case that upheld racial segregation. But no formulation of principle is so clear that it cannot be twisted to mean its opposite. In the name of "colorblind" voting districts, the Supreme Court on June 13 imposed a new and unique political burden on African-Americans and other racial minorities. Voiding one Congressional district in North Carolina and three in Texas, the Court ruled that legislative districts drawn to increase minority representation are unconstitutional if race is too dominant a factor in their construction.
As Justice John Paul Stevens so accurately pointed out in his dissent, after the Court's two 5-to-4 rulings, minority voters can be grouped to make up a majority only in what the Court called "compact" districts with regular shapes, "while white voters can be placed into districts as bizarre as the State desires." The result, said Stevens: "segregating and balkanizing" minority voters far more effectively than the "oddly shaped" districts so distressing to the Court majority.
In some ways the Court's opinion is nothing new--it simply reaffirms the tortured, ahistorical logic applied by Justice Sandra Day O'Connor in the 1993 case Shaw v. Reno (which involved the North Carolina district revisited in this year's rulings). But for blacks working within the electoral process in the South and for the weary but persistent civil rights bar, it is portentous. It means that redrawing districts under the Voting Rights Act is finished as a tool for insuring black representation.
This is a moment, then, for a fundamental re-evaluation of goals and strategies. As long ago as 1990, Lani Guinier warned that the tactic of drawing majority-minority districts was doomed to failure--not only because of hostility to them among judges inherited from the Reagan era but because even an optimal number of black officeholders from mostly black districts are too easy to marginalize within the nation's legislatures. Guinier called it "the triumph of tokenism," whose "primary accomplishment has been to effect cosmetic changes in the composition" of legislatures. …