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  • Supreme Court Report

  •   Justices Revisit Issue of Minority Voting Districts

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, December 10, 1996; Page A04

    The evolving issue of voting rights entered a new round yesterday when the Supreme Court took up a Georgia case that could determine in real, rather than theoretical, terms when states can use race to redraw voting districts.

    At issue are the districts that civil rights activists credit for doubling the number of black representatives in Congress during the past six years but that opponents claim unconstitutionally classify people by skin color and discriminate against white voters.

    The question in the Georgia case is whether three majority-black districts adopted by the state legislature in 1992 should have been cut to one. In an earlier case, the Supreme Court ruled that one of those districts was unconstitutional because race was used as a predominant factor to draft its boundaries. When a lower court subsequently redrew the state's map to take account of the Supreme Court's ruling, it eliminated a second majority-black district. The U.S. Justice Department and a group of black voters appealed.

    This time, as the Supreme Court takes up the issue, it is looking not at whether Georgia went too far in creating majority-black districts, but whether it hasn't gone far enough to ensure that blacks have a chance to elect candidates of their choice.

    The latest dispute comes against a backdrop of high court decisions that have criticized voting districts drawn along racial lines. Since 1993, when they first established the right of white voters to challenge the drafting of majority-black voting districts, the justices have not upheld a single district as constitutional after a full airing of the case. Yet Justice Sandra Day O'Connor, the voice of the majority and a critical vote in many of these cases, maintains that it is possible for states to create majority-black districts – they just need to do it using race as only one component that they combine with other, more traditional redistricting principles, such as compactness and contiguity.

    "This case tests the notion of whether there is still room for drawing majority-minority districts," said Frank R. Parker, an expert in voting rights law and a visiting professor at Washington and Lee University law school.

    Yesterday, the justices appeared as narrowly divided on that question as they have been in earlier key redistricting battles, most of which have been decided on 5 to 4 votes.

    The debate over majority-black districts is gaining renewed attention in the aftermath of the November elections. In all, five black congressional incumbents whose predominantly black districts were dismantled because of court rulings nonetheless won reelection in new districts. Their victories have prompted some opponents of race-based redistricting to argue that such gerrymandering might not be so critical to minority candidates' success.

    During oral arguments yesterday, A. Lee Parks, representing a group of white Georgia voters, implicitly referred to the reelection of black Georgia Democratic Reps. Cynthia McKinney and Sanford Bishop from new districts. "The real world of this case," he said, " . . . is that both minority candidates won. . . . They found positions that would appeal to both black and white voters."

    McKinney appeared at a news conference in front of the high court to defend majority-black districts, insisting that she never would have won reelection if not for her incumbency and its benefits.

    When they first acted in the Georgia case 1 1/2 years ago, the justices ruled that when race is the predominant factor in a district's boundaries, it will be subject to the toughest judicial scrutiny, one requiring states to show a compelling justification for the boundaries. This standard is nearly impossible to meet.

    Yesterday the Justice Department asserted that race was but one factor in the boundaries of a second majority-black district it proposed to the lower court.

    "A reasonably compact majority-black district can be drawn" without violating the Constitution, Deputy U.S. Solicitor General Seth P. Waxman told the justices.

    Waxman contended that Georgia has a concentrated minority population large enough to create a second majority-black district without subverting traditional districting practices. And he told the court that the Georgia legislature, which failed to agree on a map of its own and left the matter to the district court, made clear that it wanted two majority-black districts.

    In its ruling, the district court found that the second majority-black district split residents within the same county into separate voting districts "apparently for racial reasons." It rejected the federal government's contention that federal voting rights law requires the creation of a second majority-black district.

    While Waxman insisted yesterday that the counties could have been divided based on nonracial grounds, Justice Anthony M. Kennedy observed, "The counties you split are split along white-black lines."

    Laughlin McDonald, an ACLU lawyer representing black voters, also argued for the second majority-black district, stressing Georgia's history of racially polarized voting and what he said was the legislature's intent when it tried to create a second district.

    Justice Antonin Scalia particularly questioned whether lawmakers truly wanted two majority-black districts or were responding to federal pressure. In the aftermath of the 1990 census, the Justice Department under President George Bush pressed states to maximize the number of majority-black districts. The effort to meet this demand and preserve the turf of white incumbents led to numerous oddly shaped, serpentine districts that are now the focus of litigation nationwide.

    The state of Georgia is in an unusual position. During the earlier case at the Supreme Court, it defended the three majority-black districts. But now, in Abrams v. Johnson, it wants the lower court plan with just one district upheld.

    Georgia Attorney General Michael J. Bowers said the Justice Department was improperly trying to force on the state a plan that maximizes black voting power.

    Separately yesterday, the court heard a voting rights challenge to a Louisiana school board in Bossier Parish. At issue in Reno v. Bossier Parish are federal voting rights standards for proposed changes in district boundaries and how challengers would prove that a voting practice has a discriminatory effect.

    © Copyright 1996 The Washington Post Company

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