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Court goes a-hunting gerrymanders.

Redistricting after the census can be a legislative nightmare, especially if a state has seen a substantial gain or loss in population. Sometimes, the new district lines are drawn up in back rooms, at other times by disinterested experts. But either way, few are likely to be entirely pleased by the results, and many will be downright angry.

That already messy process grew more confused and difficult in June thanks to a Supreme Court decision in a North Carolina case. On a 5-4 vote, the justices said for the first time that 'racial gerrymandering" may be unconstitutional.

"A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid," wrote justice Sandra Day O'Connor for the Court.

The 14th Amendment guarantees each person 'equal protection of the law," and this has been interpreted as forbidding any sort of racial discrimination by state officials. North Carolina lawmakers appear to have violated that amendment, O'Connor said, by using race as the main criterion in drawing boundaries for two of its congressional districts.

"Racial gerrymandering, even for remedial purposes, may Balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters," she said.

The high court's decision in the case of Shaw vs. Reno revived a lawsuit filed by white voters who claimed that their rights were violated by the state legislature's creation of two "majority-minority" districts. The decision sent the case back to North Carolina for a further court hearing to see whether the state can justify its district lines or be ordered to make changes.

Certainly, the North Carolina lawmakers have reason to feel snakebitten. They created these new districts under pressure from the Justice Department, which in turn said it was following the dictates of the Voting Rights Act of 1982. In that measure, Congress encouraged an increase in the number of black and Latino representatives through electoral changes. Before, voting procedures were illegal only if it could be shown they were adopted to discriminate against minorities. But in 1982, Congress went further and said an electoral system is illegal if "it is shown that (minorities) have less opportunity than other members of the electorate ... to elect representatives of their choice." Under this approach, results count.

In North Carolina, slightly more than 20 percent of the voters are black, yet the state had sent no African-Americans to Congress since the Reconstruction era. For that reason, the Justice Department urged the state to create two of its 12 congressional districts with black majorities, and state officials did just that.

The First District of North Carolina has its core in the northeast section of the state, but extends through rural communities in the southeast section. The 12th District, the other with a majority black population, tracks along interstate 85 from Durham to Gastonia, linking together a series of mostly black communities.

Throughout the South, state legislatures made similar districting changes in hopes of warding off lawsuits filed under the Voting Rights Act. They had little reason to fear lawsuits filed by whites, however.

In the past, the Supreme Court had made clear that no one could claim a violation of their rights under the Voting Rights Act unless their vote had been "diluted." Whites in North Carolina could not say their votes were diluted since they retained 83 percent of the congressional seats (10 of 12) with 80 percent of the voting population. Furthermore, the high court in 1977 had rejected a claim by white Jewish voters in New York who said they were being subjected to unconstitutional discrimination by the creation of a mostly black district in Brooklyn.

Relying on these rulings, a panel of three federal judges in North Carolina had rejected the claim filed by the white voters there. But the Supreme Court agreed to hear their appeal and used the case to announce what seems to be a reverse in direction.

Even though North Carolina lawmakers were acting under guidance from the Justice Department and the Voting Rights Act, that 1982 law does not "give covered jurisdictions carte blanche to engage in racial gerrymandering," O'Connor said. She was joined by Chief justice William Rehnquist and justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

But the Court's opinion did not carefully spell out the difference between a legal attempt to increase minority representation and an unconstitutional gerrymander. O'Connor did stress, however, that North Carolina's district 12 was "bizarre" looking and its designers seemed to "disregard traditional districting principles such as compactness, contiguity and respect for political subdivisions ... Put differently, we believe that reapportionment is one area in which appearances do matter."

"I think it will trigger a lot more litigation," Frank Parker, an attorney for the Lawyers Committee for Civil Rights Under Law in Washington, said of the ruling. "It is a confusing decision, but if you apply what she [O'Connor] said, it could jeopardize most if not all the 26 new electoral districts that have a majority of minorities."

But Michael Hess, an attorney who filed a brief on behalf of the Republican National Committee, applauded the ruling and said it does not foreclose the creation of minority districts.

"There were clear alternatives in this case. [The North Carolina General Assembly] could have created a more compact district," Hess said. "Our view is that not all race-conscious districting is unconstitutional, but you have to follow traditional districting principles. What [the legislature] did here was unconscionable."

The high court is almost bound to say more on this subject in the next few years, but don't expect a sharp change in direction because of President Bill Clinton's appointees. Judge Ruth Bader Ginsburg will replace Justice Byron White, who dissented in the reapportionment case. The other dissenters included Justices Harry Blackmun, 84, and John Paul Stevens, 73, the other members of the Court most likely to retire during the first term of the Clinton

administration.

In addition to the voting rights case, the Court decided several other cases that will affect the states.

* The Court dealt 16 states a potentially severe financial blow by making an earlier tax ruling retroactive. In the 1989 case of Davis vs. Michigan, the Court struck down a discriminatory state tax law that exempted the pensions of state and local employees, but taxed those of federal retirees. Michigan officials quickly agreed to pay refunds and settle the matter.

Some 23 other states had similar laws, which they quickly altered. But 16 of them, led by Virginia, resisted paying refunds for taxes collected before 1989. If the Old Dominion were forced to do so, its liability could reach $467 million. In the 16 states combined, the total could reach $1.8 billion.

But the Court's ruling in Harper vs. Virginia was not all bad news. Justice Clarence Thomas said the law "does not necessarily entitle (the retirees) to a refund." If the state had a procedure that permitted taxpayers to challenge taxes in advance, this could be "sufficient by itself to satisfy" the legal requirements. Presumably, if taxpayers failed to challenge the law before, they are not entitled to a refund now. The ruling invites further litigation to determine whether the procedures in Virginia and elsewhere were adequate.

* In a potentially significant victory for the "school choice" movement, the Court upheld the use of taxpayer money to pay for a deaf child's interpreter in a Catholic school. The 5-4 ruling in Zobrest vs. Catalina Foothills School District marked the first time the Court has endorsed the use of public employees in a parochial school. But more important, the opinion by Rehnquist appears to give a green light to state-funded "vouchers" for students in private as well as public schools. "Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to a [First Amendment] challenge just because sectarian institutions may also receive an attenuated financial benefit," he wrote.

* In a victory for both state prosecutors and civil rights advocates, the Court upheld "hate-crime" laws. These measures on the books in 26 states impose harsher punishments on criminals who select their victims because of race, religion, gender or sexual preference. Last year, the Court struck down a Minnesota law that made it a crime to burn a cross or display a Nazi swastika. These so-called "hate speech" laws violate the First Amendment because they punish a type of symbolic expression, the high court said in the 1992 case of R.A.Vs. vs. St. Paul. But this year, the Court stressed that "hate-crime" laws are different because they punish criminal conduct. Typically, under these laws, a person who commits an assault can have his prison term extended if his crime was motivated by the victim's race, religion, gender or sexual preference. The 9-0 decision in Wisconsin vs. Mitchell reversed state supreme court rulings in Wisconsin and Ohio that had invalidated hate-crime statutes for punishing a type of "thought crime."

* In a setback for law enforcement, the Court put new limits on the power of prosecutors to seize the assets of convicted drug dealers. The ruling came in the case of a South Dakota man whose home and auto repair business were forfeited after he was convicted of selling two grams of cocaine. Before, the Court had taken the view that a forfeiture was not a punishment, but rather a legal action against a piece of property that was used in a crime. But in Austin vs. U.S., the justices reversed course and ruled that the seizure of a person's property is a punishment that is limited by the Eighth Amendment's ban on "excessive fines." Because the ruling is based on the Constitution, it applies to all forfeitures actions, whether federal or state. While the court did not spell out guidelines, it appears that prosecutors will be barred from seizing property where value is excessive in relation to the crime committed.

* The Court used an unusual case about ritual animal sacrifices to warn lawmakers that they must tolerate the religious rights of even the most unpopular sects. By a 9-0 vote, the Court struck down a Hialeah, Fla., law that made animal sacrifices a crime. The justices noted that animals could be killed for sport, pest control, food or for practically any reason except religious worship. They also noted that the Hialeah city council enacted its law in response to community pressure when the leaders of an African-Caribbean sect announced plans to build a church. The Constitution's guarantee of the "free exercise of religion commits government itself to religious tolerance," wrote Justice Kennedy in Church of Lukumia Babalu Aye vs. Hialeah. "Upon even the slight suspicion that proposals for state intervention stem from animosity to religion or districts of its practice, all officials must pause to remember their high duty to the Constitution and the rights it secures."

Does Shaw vs. Reno Mean Back to the Trenches?

Legislators and legislative staff who toiled late into the night hunkered over computers that spewed out the new 1990 maps should be alert but not alarmed by the U.S. Supreme Court's decision in Shaw vs. Reno.

The notorious North Carolina 12th District was not rejected by the high court, it was only remanded back down to a federal district court for a new hearing in light of the decision.

While the North Carolina case has the potential to trigger a new round of redistricting challenges, many questions were left unresolved. Federal district courts will probably shy away from throwing out established districts that have endured an election cycle. Also, the new decision applies only to a certain type of district--one that is "bizarre" in shape and drawn solely on the basis of race.

Compliance with the 1965 Voting Rights Act was indisputably the dominant influence on the 1990 cycle of redistricting. With the advent of computers, states were able to abide by the one person, one vote doctrine with relative ease, so the Voting Rights Act was the priority in drawing new districts.

According to a new NCSL, survey, 1990 redistricting substantially increased the number of districts--both congressional and legislative--where a minority group comprises more than half of the population. Sixteen new blacks and nine new Hispanics were elected to Congress. In state legislatures, blacks increased their numbers by almost 100, a more than 20 percent increase. Hispanics had a net gain of more than 40 seats, an increase of more than 35 percent. These are the seats that ultimately could be challenged.

Although it was designed (with the endorsement of the U.S. Justice Department) to elect a black member to Congress, the shape of the district scrutinized by the Supreme Court was apparently a source of great concern to the majority. "Reapportionment is one area in which appearances do matter," said Justice Sandra Day O'Connor.

What most disturbed the majority of the court was that the contorted district was draw solely on the basis of race without regard for what the Court called "traditional districting principles such as compactness, contiguity and respect for political subdivisions." The majority admitted that these are not constitutionally required--a point that was repeatedly made in the dissenting opinions. However, the decision hinges on the fact that the North Carolina General Assembly seemed to go too far in creating the irregular, or bizarre, district for the purpose of what the Court called "racial gerrymandering."

While the definition of a bizarre district is left up to the lower courts in future litigation, it is clear that only a special type is vulnerable under Shaw. Susceptible districts would be those that neglect the "traditional districting principles" when drawn to give minorities a majority of the population. Shaw means that such districts are vulnerable to challenge, but also provides for their defense.

According to the Court, states can justify their decisions to draw districts based on race if they can prove that they did it to "further a compelling governmental interest." It is unclear what those compelling interests might be, but one example could be complying with Section 2 of the Voting Rights Act. North Carolina will now have to convince the federal district court that there was a compelling governmental reason for drawing District 12.
COPYRIGHT 1993 National Conference of State Legislatures
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Copyright 1993, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Savage, David G.
Publication:State Legislatures
Date:Sep 1, 1993
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