Such gerrymandering to create “minority-majority” electoral districts is the quintessential “outcome-based” racial policy and a provocative political entitlement. The purpose of drawing lines to create districts in which minorities constitute a majority of the voters is to assist, virtually to the point of ensuring, the election of minorities to offices to which they presumably are entitled by virtue of their race or ethnicity. The result is “political apartheid,” to use Justice O’Connor’s phrase from the 1998 ruling invalidating North Carolina’s districting scheme that produced the 160-mile-long district that straggled down Interstate 85 and for most of its length was no wider than the highway. Other racially concocted districts have shapes like road kill – like raccoons that have had run-ins with 18-wheelers. All such districts rest on the assumption that people of a particular race will and should think and act alike. This assumption undergirds the doctrine of categorical representation, which holds that the interests of people in certain racial, ethnic or sexual categories can be understood, sympathized with, articulated and advanced only by other people in those categories.
The 1965 Act was written to guarantee to blacks the right to vote, a right long denied by many devices such as discriminatorily administered registration requirements or literacy tests, or naked violence.The Act was passed after the civil rights march to Montgomery from Selma, a town where the population was 58 percent black but only 3 percent of voters were black. The Act was a swift success. Between 1964 and 1969 the number of blacks registered to vote in the 11 states of the former Confederacy more than doubled. In 1963 there had been fewer than 100 black elected officials in those states. In 1978 there were 191 in Mississippi.
But in the hands of lawyers who regard legislation as merely the launching pad for litigation, the Act was increasingly construed to mandate government measures to ration political power among certain preferred groups. Amended with opaque language in 1982, it was subsequently read to entitle certain groups to political set-asides – offices they were sure to win. It was read to guarantee not just each individual’s right to vote but certain groups’ entitlements to win quotas of offices. It was read to mean that for blacks and Hispanics the reality of the right to vote could be proven only by certain electoral results. Republicans, particularly President Bush’s Justice Department, connived at this misconstruction of the Act for partisan advantage: When blacks, who generally are reliable Democratic voters, are swept from many districts into one district, all the districts contiguous to that new “minority-majority” district become easier for Republicans to carry. The liberal transformation of the Act since 1965, recently abetted by cynical Republicans, is one reason Newt Gingrich is Speaker of the House on the 30th anniversary of the Act.
The transformation was somewhat reversed last week when the Supreme Court held, 5-4, that the Act cannot compel what the Constitution forbids. At issue was Georgia’s 11th Congressional District, a splatter on the map from Atlanta all the way to Savannah (to within a few miles of Justice Thomas’s birthplace in Pin Point). The Court held that the district violates the 14th Amendment’s guarantee of equal protection of the laws because race was the “predominant” factor when the state legislature drew the district’s meandering lines – lines that can have no other explanation. Under pressure from the Justice Department, which was supporting the ACLU’s “Max-Black” plan to produce a third black majority district, Georgia’s Legislature subordinated to racial considerations such traditional race-neutral districting principles as compactness, contiguity and respect for political subdivisions and communities defined by actual shared interests.
Justice Kennedy, writing for the majority and joined by Justices Rehnquist, O’Connor, Scalia and Thomas, detected in Georgia’s districting “the offensive and demeaning assumption” that voters of a particular race will, because of their race, have the same political preferences. But to give Georgia its due, the state did not claim to be acting to implement any theory, such as categorical representation, or to remedy past discrimination. It did what it did just to get the Justice Department off its back. Makes you wonder why it is called Justice.
Justice Ginsburg, joined in dissent by Justices Stevens, Souter and Breyer, correctly notes that legislatures have often been respectful of ethnic bonds in drawing district lines that produce such entities as are routinely referred to as “the predominantly Italian wards of South Philadelphia” or a “Polish district in Chicago.” But what the dissenters elide is the distinction between somewhat trimming a district’s lines to conform to a compact racial or ethnic community, and drawing race-driven lines to create an illusory political “community” that the organic life of society has not created.
The creation of “minority-majority” districts expresses the ideology of “identity politics”: you are whatever your racial or ethnic group is. But that ideology, promulgated by political entrepreneurs with a stake in the racial and ethnic spoils system, is false regarding the facts of human differences, and bad as an aspiration and an exhortation. Furthermore, such districts are bad for the public weal because they reduce the incentive for politicians to form coalitions by reaching across racial lines.
Last week’s ruling will make the Justice Department and courts less involved in allocating political offices by predetermining election results. As a result there may be fewer “minority-majority” districts. But that does not necessarily mean there will be fewer minority members of Congress. One of Speaker Gingrich’s loyal soldiers in the House is J. C. Watts, a freshman from Oklahoma’s fourth district. Watts is black. Only 7 percent of the fourth district is black. Obviously the people of that healthy district have not embraced the principle of categorical representation.
