States' Rights Survive High Court Challenges

By Savage, David G. | State Legislatures, July-August 1997 | Go to article overview

States' Rights Survive High Court Challenges


Savage, David G., State Legislatures


Ruling on a number of cases significant to states, the U.S. Supreme Court moved to strengthen states' autonomy in reapportionment, elections and the operation of federal programs. It nixed state laws requiring drug testing for candidates and taxing out-of-state charities.

In a victory for the 16 states that must get prior approval before changing their electoral districts, the Supreme Court has reined in the Justice Department's power to use this authority to force adoption of new "majority-minority" voting districts.

Unquestionably the Voting Rights Act of 1965 gives federal authorities the power to "freeze" changes that will reduce the number of minority representatives. For example, if a county's seven-member school board proposed a redistricting plan that would likely reduce the number of black representatives from two to one, that change cannot be implemented without the prior approval of the Justice Department. This "preclearance authority" is in Section 5 of the Voting Rights Act.

Over the past decade, however, the Justice Department's civil rights division has gone further and blocked redistricting plans because they fail to create new black-majority districts. Because Section 2 of the act forbids districting plans that "dilute" the voting strength of black and Hispanic communities, Justice Department lawyers have maintained they are also authorized to freeze changes that fail to increase minority representation where possible.

The Supreme. Court disagreed. The two sections of the law "combat different evils and accordingly impose very different duties upon the states," wrote Justice Sandra Day O'Connor for the 7-2 majority. The preclearance power has a "limited purpose" and "is designed to combat only those effects that are retrogressive," she said. To force states, counties, cities and school boards to litigate over the impact of their reapportionments before they even take effect "is to increase further the serious federalism costs already implicated," she added.

The ruling clarifies the law, but does not break new ground, O'Connor insisted. Without a doubt, however, the Justice Department had operated on a different understanding of the statute. The impact of the Court's ruling will likely be felt in four or five years when states begin the next round of reapportionments.

The May 12 decision, arising from a Louisiana school board dispute, is the latest in a series of rulings that have eased the pressure to create more majority-minority electoral districts.

In early rulings from North Carolina, Georgia and Texas, the Court has said states cannot use race as a "predominant factor" for drawing district lines. This sort of "racial gerrymandering" is unconstitutional, the Court has said. Meanwhile, in cases from Florida and now Louisiana, the Court has stressed that the Voting Rights Act does not require states to "maximize" the number of districts with a black or Hispanic majority.

The Justice Department's preclearance authority applies to all or parts of 16 states: Alabama, Alaska, Arizona, California, Florida, Georgia, Louisiana, Michigan, Mississippi, New Hampshire, New York, North Carolina, South Carolina, South Dakota, Texas and Virginia.

The most recent case arose from the reapportionment in Bossier Parish in northwestern Louisiana. In 1990, the school board had 12 members, all of whom were white and were elected from white-majority districts. Districtwide, about 20 percent of the population was black.

Because of population shifts shown by the 1990 census, the school board redrew its lines in 1992. It rejected a proposal offered by the local chapter of the National Association for the Advancement of Colored People that would have created two majority-black districts. Instead, it followed a proposal closer to its existing districts that retained white majorities in all 12 districts.

In August 1993, Attorney General Janet Reno rejected the board's plan, saying it represented a "dear violation" of Section 2 of the Voting Rights Act. …

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