STUART TAYLOR, The American Lawyer: It really starts in about 1990, with the decennial census that led to redistricting all over the country and in Georgia, because of a population increase, they went from ten to eleven districts, voting districts for Congress. So they had to redraw the whole map. The state legislature under very heavy pressure from the Justice Department, which was–which was enforcing a legal interpretation of the Voting Rights Act that you have to maximize the number of minority majority districts, black majority and Hispanic majority districts, pushed the legislature to have three black majority districts in Georgia, which would be roughly proportionate to the 27 percent black population.

JIM LEHRER: In other words, that’s how it looked. That’s how the districts looked.

STUART TAYLOR: Yes.

JIM LEHRER: Okay.

STUART TAYLOR: And that was attacked by white voters and others who said that it was extreme racial gerrymandering, drawing weird shaped districts, some of them solely for the purpose of electing black representatives through race consciousness. And the Supreme Court in 1995–two years ago almost to the day–struck down that plan on the ground that at least one of the districts was an unconstitutional racial gerrymander. And they set in that case a test that if the predominant factor in the districting was race that it’s unconstitutional and in violation of the 14th Amendment. It went back down to the lower court. They read the Supreme Court’s decision and said that one of the other black districts was also unconstitutional, and they kicked it back to the legislature to redraw these districts. The legislature deadlocked. The House wanted two black districts; the Senate wanted one. So it went back to the court. The court drew a map with one black district only, and black voters, instead of–

JIM LEHRER: And this is the way it looks now, right? That’s the one black district, the one that’s light there on the–on the map, right?

STUART TAYLOR: The fifth, which is an urban area around Atlanta.

JIM LEHRER: Right.

STUART TAYLOR: And the Justice Department and civil rights groups said that’s not enough. It violates the Voting Rights Act to have such small black representation. They’re proceeding on the premise that blacks have a hard time getting elected unless there’s a black majority in the district, and black voters have a hard time making their wishes felt. That went to the Supreme Court and the issue for the Supreme Court was whether one was too few. The Supreme Court said, no, one black district is enough. In fact, they suggested that it might be unconstitutional to have had two, as well as to have had three. The split was the same five/four split we’ve had in each of the last five years, in each June, I think, or around June; there’s been another hammer blow at this movement to maximize the number of minority districts. The conservative majority of the court very narrowly–five/four in every case–same five every time, same four every time–keeps hammering it down and saying we don’t want you trying too hard to create black districts, although they never said that it’s unconstitutional to do it at all.

JIM LEHRER: Now, what is the–now, the four dissenters, what is their argument, and not only the dissenters, as represented on the court, but that argument, what is the argument for these minority districts?

STUART TAYLOR: Broadly speaking, the argument from the minority districts is that we have a long history in this country and particularly in the South and especially in Georgia, among other states in the South, of racially polarized voting and racial discrimination, so that white voters by and large vote for white candidates; black voters by and large vote for black candidates. If all the districts are white–which might happen in a lot of places or most of them because blacks are scattered around, they’re 12, 13 percent of the population and they don’t always tend to be concentrated–then blacks are going to have (a) a very hard time getting elected to office and (b), they’re going–the black voters are going to have a hard time electing the representatives of their choice. That’s their argument, and the Voting Rights Act to some extent embodies that argument and pushes for a creation of black districts where necessary.

JIM LEHRER: Now, specifically in Georgia, blacks make up 27 percent of the population, is that right?

STUART TAYLOR: Yes.

JIM LEHRER: And that was the argument too; that they deserve 27 percent of the congressional seats, is that basically it?

STUART TAYLOR: It comes close to being it. Basically, it–there isn’t an argument really that everywhere it ought to be proportional, but there was an argument that in Georgia, given the difficulty blacks have historically had getting elected to office, you ought to push as close to proportional representation in the way districts are drawn as possible. Now, the last election has cast some doubt on those assumptions.

JIM LEHRER: Cynthia McKinney, who was–one of her districts was thrown out in this case, and then she had–she ran–well–

STUART TAYLOR: This was after the 1995 decision which the court knocked out–in the subsequent lower court–we’re down to one black district in Georgia. And civil rights groups and the Justice Department tended to say blacks can’t possibly get elected, you’re going to purge Congress of black people. Well, guess what? All three black incumbents in Georgia won reelection, including Cynthia McKinney, who’s a very liberal black representative, won reelection in a 33 percent black district. Now her–she and others have said, well, I never could have won but for the power of incumbency. But those election results, both in Georgia and elsewhere, became another arrow in the quiver of those who say we don’t need racial gerrymandering for blacks to have a fair chance to get elected. And that’s part of the argument. And the Supreme Court cited those facts.

JIM LEHRER: They did cite those facts. I was going to ask you that.

STUART TAYLOR: They did.

JIM LEHRER: They did cite them. Now, where does this decision today now lead this issue? Is it over?

STUART TAYLOR: It’s not over because the court and in particular Justice O’Connor, who tends to be a bit on the fence on these things, still says that sometimes the Voting Rights Act may require deliberate efforts to create minority majority districts as a remedy for voting–racial block voting by whites and other things that keep blacks from getting fair representation. And there will still be–there’s a lot of legal uncertainty, this huge legal confusion, because although the court keeps saying, no, too much of this is unconstitutional, there’s also a strong argument that–and sometimes you might get a majority in the court that not enough of it violates the Voting Rights Act.

JIM LEHRER: Okay. So, it’s not over yet.

STUART TAYLOR: Not completely over, but certainly the pressure from the court is against race conscious redistricting.

JIM LEHRER: Stuart, thank you very much.

STUART TAYLOR: Thank you.

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