Confusion over race-based House seats

Is it unconsti-tutional racial gerrymandering whenever a newly created congressional district contains a majority of African-American or Hispanic voters?

What about when the shape of the new district resembles the outline of a reptile unsuccessful in its attempt to cross a road?

Today, the US Supreme Court once again confronts the thorny issue of how minority-oriented congressional district lines can be drawn in a way that comports with the Constitution.

At issue is North Carolina's 12th Congressional District, which was challenged in federal court as having been drawn with racial factors as a predominant consideration.

The allegation is that a redistricting plan that predominantly relies on race to create a district likely to result in the election of minority candidates violates the equal protection clause of the 14th Amendment, which outlaws racial favoritism.

Another opportunity

This will be the third time in seven years the high court has examined the much-scrutinized North Carolina district. And it will be yet another opportunity for the justices to issue a set of clear instructions to lawmakers nationwide, who are nervously anticipating redrawing their own districts next year following the 2000 census.

"The fact that this redistricting at the congressional level in North Carolina is now before the court for the third time in six or seven years indicates that something is wrong," says Laughlin McDonald of the American Civil Liberties Union Foundation in Atlanta, who wrote a friend-of-the-court brief in the case.

Unless the rules are made more explicit, legal analysts say, the redistricting process is bound to become hog-tied in lawsuits and acrimonious debate over where and why certain district lines were drawn. The ACLU is urging the high court to jettison its existing precedents and take a fresh look at the issue.

"Those standards are just unworkable," Mr. McDonald says. "Nobody knows the extent to which you must take race into account and the extent to which you take it too much into account."

How best to deal with past discrimination and injustice is one of the most divisive issues facing the Supreme Court.

The nine justices are deeply divided over the role race and ethnicity should play in crafting remedial measures ranging from affirmative-action programs in schools and the workplace, to efforts to create majority-minority voting districts to help Congress more closely resemble the diversity of the American people.

The 5-to-4 division on the high court has been highlighted in a series of congressional redistricting cases in the 1990s. The conservative wing of the court has prevailed, raising doubts about race-based efforts authorized under the Voting Right Act to empower minority voters to elect candidates of their choice. Instead, the majority has emphasized the 14th Amendment's mandate of equal protection of all Americans regardless of race.

The court has ruled repeatedly that when race plays a predominant role in the drawing of congressional district lines, the redistricting plan must be viewed with extreme suspicion by federal judges. Specifically, the court says, such plans will only be upheld if officials can demonstrate that the race-based remedy was narrowly tailored to serve a compelling state interest. In the four major redistricting cases heard by the Supreme Court this decade, none was able to meet that standard.

In 1996, Justice Sandra Day O'Connor wrote a concurring opinion in which she voiced the crux of the conservatives' concern over minority redistricting plans.

"At the same time that we combat the symptoms of racial polarization in politics," she wrote, "we must strive to eliminate unnecessary race-based state action that appears to endorse the disease."

Justice O'Connor is viewed by many legal analysts as the most promising swing vote on redistricting cases. But others say the prospect of her joining the liberals in a potential landmark redistricting decision is extremely unlikely.

Conservative edge?

Conservatives are hoping the court's conservative majority - including O'Connor - will expand existing precedent by barring the use of any racial considerations in drawing congressional districts.

"The court should insist that all 'vestiges' of the racial gerrymander be eliminated in order to assure that public confidence in the electoral process is restored," says a legal brief by Robinson Everett, a Durham, N.C., lawyer challenging the constitutionality of the 12th District.

Voting rights specialists say if years of discrimination and voter disenfranchisement are to be reversed in minority neighborhoods, officials must take race into account when fashioning a remedy.

"It sounds so great to say we really need to have a colorblind America. That is a worthy goal," says Edward Still of the Lawyers' Committee for Civil Rights Under Law. He adds: "But in the meantime, while we are still waiting for that change to occur, we still need to have [voting] districts in which blacks have the ability to elect candidates of their choice."

Todd Cox of the NAACP Legal Defense and Educational Fund agrees. "It is critical for the Supreme Court to make clear that it is not unconstitutional to consider race in redistricting. As we approach the next redistricting cycle [in 2000], it will be very important for plan drawers to understand that."

But without specific instructions from the court, legislators redrawing district maps may be forced to guess where exactly to draw the line between reliance on racial factors and other considerations like voting preferences and economic status.