When is race-based electoral districting required by the Voting Rights Act? When is it prohibited by the 14th Amendment? The law in this area is whatever justice Sandra Day O’Connor says it is. Her pivotal role was recently underscored by her brief but controlling concurrence in
Miller v. Georgia, 63 U.S.L.W. 4726 (June 29, 1995), the 5-4 decision striking down one of that state’s three majority-black congressional districts as unconstitutional.
Justice O’Connor’s handiwork is a jurisprudential mess-a confusing and indeterminate mélange of apparently conflicting statutory and constitutional doctrines, which provides little useful guidance to lower courts and amounts to a formula for endless litigation and political chaos.
Some of this confusion may be unavoidable. That’s because O’Connor-almost alone on the Supreme Court-seems to be struggling to steer a middle course between the Scylla of racial Balkanization and the Charybdis of black disempowerment. Her search for a necessarily indeterminate middle ground-albeit flawed in the execution by undue vagueness-seems the least flawed approach to a devilishly difficult group of issues.
Consider the alternatives: To O’Connor’s right, Justices Antonin Scalia and Clarence Thomas, with the substantial agreement of Justice Anthony Kennedy and Chief Justice William Rehnquist, are pushing a "colorblind Constitution" theory that could wipe out most majority-minority districts (and thus bring back all-white congressional delegations in many Southern states), that would demolish key provisions of the 1982 amendments to the Voting Rights Act, and that makes a mockery of the Scalia-Thomas professions of fealty to judicial restraint and to the original meaning of the Constitution.
To O’Connor’s left, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer have voted to uphold extreme racial gerrymanders that threaten to aggravate the Balkanization of the electorate by entrenching as a permanent and officially sanctioned feature of our political process the very disease of racial bloc voting that the Voting Rights Act was designed to cure.
Such gerrymandering has been pushed by an unholy alliance of liberal black and Hispanic politicians and civil rights groups with conservative white Republicans, working in concert to create as many majority-minority voting districts as possible. With the energetic assistance of the Justice Department, under both Presidents George Bush and Bill Clinton, these allies have advanced their respective agendas at the expense of moderate white Democrats-and, arguably, to the detriment of most black voters.
The O’Connor approach, on the other hand, seems to be to allow the creation of majority-minority districts that encompass reasonably compact communities of interest; to allow (or even require) such districts, when truly necessary, to remedy the virtual disenfranchisement that can result from dispersing minority voters among majority-white districts; but to prohibit the use of racial gerrymandering to pursue proportional representation at all costs.
Civil rights lawyers have voiced hyperbolic complaints that the Miller decision "guts the Voting Rights Act of 1965" "cripple[s] minority voting rights," and "has thrown into question the constitutionality of every black-majority district across the nation" in the words of Laughlin McDonald of the American Civil Liberties Union. But a reading of the Miller opinions suggests otherwise.
So does the Court’s summary affirmance, a few hours after Miller was announced, of a lower court decision upholding a California redistricting plan that included several relatively compact majority-minority districts. And so do the Court’s decisions to hear two appeals this fall involving majority-minority congressional districts in Texas and North Carolina.
A prediction: The number of black members of the House of Representatives, now 38, will remain well above 30 after the electoral system has absorbed the impact of…