It’s reasonably safe to say that there are few vital issues on which the United States Supreme Court has been so consistently inconsistent of late than in the area of so-called “racial gerrymandering”–the consideration, in pursuit of federal voting rights laws, of racial data in considering congressional and state legislative districting schemes.
Yesterday’s 5-4 SCOTUS decision on a North Carolina case (Bartlett v. Strickland) continues that ignoble tradition of Supreme confusion. In a majority opinion written by confusion-meister Justice Anthony Kennedy, the Court held that the federal Voting Rights Act in no circumstances dictates adoption of districts in which minority voters represent less than a majority of the electorate. This directly affects the previous practice (particularly during the last decennial redistricting round) of promoting on VRA grounds so-called “crossover” or “minority-influence” districts where candidates favored by minority voters had a good chance of winning by putting together a biracial coalition composed of most minorities and some whites–typically in places where minority voters represented somewhere between 40% and 50% of the electorate.
This means the only VRA-required districts henceforth will be those where minority voters are in an actual majority. The effect, as Justice Souter observed in his dissent, may well be to encourage “packing” of minority voters into some districts, enabling the “bleaching” of others. And the consequences of that approach, as we learned during the 1991-92 redistricting cycle, is often to significantly reduce Democratic representation, and (in the South at least) virtually eliminate white Democratic legislators and Congressmen who rely on robust minority voting.
In other words, if you don’t want to get into all the legal complexities, yesterday’s decision could be bad news for the Democratic Party, and for the biracial coalitions that the Democratic Party so often depends on for success. Indeed, if, as expected, the election of an African-American president heralds a growing willingness of white voters to cross racial lines (as black voters, of course, have so often had to do), reducing those “crossover” districts could reduce the number of minority candidates in office–a rather perverse outcome given the overriding purpose of the Voting Rights Act.
It’s important not to overstate the immediate impact of this decision, however: it only affects redistricting decisions made in order to comply with the VRA ban on “dilution” of minority voting rights. States are perfectly free to draw up maps identical to those at issue in North Carolina, but not as a matter of VRA compliance (to get technical about it, the district in question ostensibly violated a state law against districts that subdivided counties; the Court simply ruled that the VRA didn’t apply, and thus didn’t override that state law). But states, particularly in the South, where Republicans control the redistricting process are quite likely to go back to the “packing” and “bleaching” practices of the recent past in response to this decision.
(Another complication is that the ruling only directly applied to lawsuits under the VRA, not to the “preclearance” requirement that most southern states and a few areas outside the South get Justice Department approval for redistricting maps. But it’s highly likely that a subsequent decision will extend the same logic to that process).
The Democratic-controlled Congress could, of course, moot the whole issue by amending the VRA to make it clear that “crossover” districts are favored; that’s exactly what Justice Ginsberg suggested it do in her own dissent in Bartlett. But Kennedy’s opinion hinted that such a construction of minority voting rights might raise constitutional problems under the Equal Protection Clause (another irony, given the origins of that Clause as a basis for protecting African-American rights).
In the end, the only sure remedy for Bartlett is for Democrats to win as many governorships and legislative chambers as possible in 2010, particularly in states with large minority populations.