The district was drawn to sweep together enough blacks to guarantee a black member of Congress if all the blacks (a slender 53 percent majority) do as the government obviously thinks they should-vote as a herd. The state drew the district under duress from Bush’s Justice Department, which thought it was applying the Voting Rights Act. It is read to require the creation of many “majority minority , districts, the boundaries of which veer hither and yon, gathering in blacks or Hispanics. (Below is Illinois’s “earmuff district designed to corral Hispanics.)
Twenty percent of North Carolina voters are black. When redistricting after the 1990 census, North Carolina created one “safe” black district. Not enough, said Washington. Hence the 12th District.
Now the Supreme Court has ruled, 5-4, that the l2th District may amount to unconstitutional racial gerrymandering. Why.? Perhaps whites are denied the “equal protection” right to “race neutral” electoral processes? But the Court has never affirmed any such right, and hardly can without finding the VRA unconstitutional. Justice O’Connor’s opinion (joined by Rehnquist, Scalia, Kennedy and Thomas) contains political maxims more convincing than its constitutional reasoning. It is less an argument than an aesthetic recoil from a political act-District 12. O’Connor’s opinion sows confusion about what is permitted, or required, by the VRA in the way of racial gerrymandering.
“It is unsettling,” says O’Connor, “how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past.” Such as Mississippi’s “shoestring” district during Reconstruction, which swept enough blacks into one narrow district along the river to leave five other districts with white majorities. Or such as Alabama’s redrawing of the city borders of Tuskegee in the 1950s to turn a square city into a 28-sided entity excluding many black voters from the city. However, O’Connor feeling “unsettled” does not constitute a constitutional argument. What should unsettle her, and us, is the many “race conscious” government actions that have brought us to monstrosities like North Carolina’s 12th.
O’Connor says the bizarre shape of the 12th is “unexplainable on grounds other than race” and “reapportionment is one area in which appearances do matter.” Actually, the 12th District appears compatible with the VRA, as currently construed (or misconstrued), and not incompatible with any constitutional principle of government action that the five justices affirm. They do not affirm the principle that government actions must be colorblind.
Courts have construed the VRA to mean that for blacks and Hispanics the right to vote implies some sort of right to a certain level of desired results: The Act effectively entitles blacks and Hispanics to a certain percentage of congressional seats.
O’Connor cites former Justice Brennan’s warning that even in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society’s latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual’s worth or needs.” But for two decades the government, responding to the civil rights industry’s lobbying for a racial spoils system (always called “remedial”), has made race consciousness not latent but conspicuous in policymaking. And the VRA obviously assumes the “utility and propriety” of basing voting decision on skin pigmentation.
B‘Categorical representation’:_b_O’Connor says that a congressional district that is obviously created solely to effectuate the perceived common interest of one racial group “reinforces the perception that members of the same racial group–regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls.” But the VRA promotes that “perception” as a normative rule. The five justices do not say that an act promoting that perception is unconstitutional. They say only that when redistricting is obviously driven by racial calculations, there must be the “compelling” justification of remedying past discrimination.
The Act implicitly affirms the doctrine of “categorical representation,” which holds that the interests of a particular racial, ethnic or sexual group can only be understood, sympathized with, articulated and advanced by members of those groups. This doctrine threatens the core tenet of the nation’s public philosophy–the principle that rights inhere in individuals, not groups. That leads to this Balkanizing proposition: group thinking is natural and admirable.
The Court majority offers the muddy suggestion that racial gerrymandering will pass muster if the resulting districts are not too aggressively indifferent to “compactness, contiguousness, geographical boundaries, or political subdivisions.” Those are nice attributes of districts but are neither mandated by the Constitution nor respected by the VRA. American politics and law will continue to be disfigured by stains like the 12th District as long as we pursue the chimeric “justice” that is produced by “race-conscious remedies” for race-conscious injustices in the past.
The five justices’ sensible political philosophy makes them squeamish about the VRA’s promotion of particular racial results. But until the justices are prepared to find the VRA, as currently construed, they, and we, will be troubled.
