The Supreme Court re-evaluates minority voting protection

JENNIFER MORTON

On March 6th, a divided Supreme Court issued a decision on what “could be the biggest election law case… since Bush v. Gore” according to Loyola Law School professor Richard Hasen. The result, which Senator Patrick Leahy (D-Vt.) called a “serious blow to the civil rights movement,” narrows the Voting Rights Act so that only districts where all minorities make up at least a 50% majority are entitled to government protection.

Bartlett v. Strickland is the first of two cases on the current docket to reevaluate the Voting Rights Act and the issue of affirmative action in electoral politics. In the second case, the Court will review requirements for officials in sixteen states with a history of voting discrimination and consult the Justice Department before changing their election rules. These evaluations of racism in American politics are particularly pertinent in the wake of America’s inauguration of its first African-American President. In spite of the recent milestone, “racial discrimination and racially polarized voting are not ancient history,” underscores Justice Kennedy in the majority opinion.

In Bartlett v. Strickland, North Carolinian officials divided a county while drawing district lines in order to create a 39% African-American voting district thereby violating the state constitution. Redistricting officials claimed that the breach was required by Section 2 of the Voting Rights Act, which states that in drawing district lines officials may not abridge the right of a minority population to “participate in the political process and to elect representatives of their choice.” Originally intended to keep states from manipulating voting districts to reduce the voting power of African-Americans after the Civil Rights Act, the statute is now interpreted to protect the division of districts where African-Americans constitute a majority to prevent the election of an African-American representative. The dispute, however, is over what exactly constitutes a “majority.”

In a 5-4 decision, the Court ruled that only those districts in which African-Americans constitute a 50% majority are protected under Section 2 of the Voting Rights Act. In order to determine the definition of “majority,” justices cited Thornburg v. Gingles as a precedent. The 1986 case, in which the court first interpreted the 1982 amendments to the Voting Rights Act, stated that in order for a minority group to be eligible for protection under the act, it had to be “sufficiently large and geographically compact to constitute a majority in a single-member district.”

Petitioners argued that the North Carolina’s District 18 could be considered a “de-facto” majority-minority district because “African-Americans could get enough support from cross-over majority voters to elect the African-American preferred candidate,” Kennedy writes. However, the Court ruled that allowing protection for these “cross-over districts” would present a problem of enforcement and interpretation in future disputes: “The rule draws clear lines for courts and legislatures alike” and “provides straightforward guidance to courts and to those officials charged with drawing district lines to comply with Section 2.” Dissenters claim that the intent of the Voting Rights Act has been abandoned in the interest of creating a convenient decision rule.

Varying interpretations of the Voting Rights Act and its goals led to a heated debate betwee the justices. The goal of the Voting Rights Act, Kennedy reminds, is to “hasten the waning of racism in American Politics,” not to “entrench racial differences” or protect the right of minority voters to form “political coalitions.” However, in his dissent, Justice Souter critiqued the 50% line as “arbitrary and counter-productive,” likely forcing the states to “perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.”

The exclusion of “cross-over districts” in which minorities could rally support from other voters in order to elect their preferred candidate has potentially significant ramifications. Warren Richey of The Christian Science Monitor, an online day newspaper, warns that this change in redistricting “could result in a reduction of minority districts by encouraging district drafters to pack traditional minority districts with more than 50 percent minority voters, rather than aiming for widespread distribution across several voting districts.”

Considering the upcoming census in 2010, the effects of changing districting and election law that may not seem largely influential now will soon appear in full force. Many districts that fail to meet the 50% cutoff will be forced to either relinquish previous minority voting protection or redistrict in a way that creates 50% minority blocks. For example, Lake Park, Florida, has never had an African-American representative, despite a 48% black population. In light of this new decision, unless Florida officials are willing to redistrict the area to create a 50% African American majority, these citizens will continue to be unrepresented in local politics.

Regardless of whether they are intended or foreseen, the question remains: could this ruling have partisan repercussions? According to Professor Martin Shapiro at Berkeley’s Boalt Law School, any decision that serves to condense Democratic votes into fewer districts ultimately opens up the opportunity for more Republican seats elsewhere in the state, which may increase Republican power in the legislature. While it cannot be assumed that African-Americans will unanimously vote Democrat, a 2005 study by the Joint Center for Political and Economic Studies shows that 74% of African-Americans claimed to identify with the Democratic Party and 88% voted for the Democratic presidential candidate in 2004.

However, the Court may have over-simplified in “treating the problem of African American representation as all-or-nothing by breaking down the decision into two choices – create safe seats or do nothing at all,” warns Shapiro. “In my view, the optimal solution is a mix between the two strategies.” Professor Shapiro advises, “creating a mix of safe seats and those in which African-Americans comprise substantial voting blocks, which is very dependent on the district. Sometimes it’s good enough that even if a white person is elected, they will have to pay attention to their black constituents.”

Like any political scientist, Shapiro acknowledges the complexity of voting and election decisions in which partisanship often appears and yields unexpected results. “Districting decisions are always politically influenced,” he says, noting that certain justices are wary to meddle in political affairs. While Justices Thomas and Scalia claimed that the ambiguous language of the act had produced a “disastrous misadventure in judicial policymaking,” Justice Ginsburg merely stated that the decision “returns the ball to Congress’ court” to “clarify beyond debate” what they intended.

Beyond the realm of voting and election law, this case may provide valuable insights into future affirmative action decisions. Does Bartlett v. Strickland mark the beginning of the end of affirmative action protection by the Supreme Court? Not necessarily.

“This decision doesn’t change in any way that ‘states may take race into account but not too much,’” notes Shapiro, commenting on the Court’s notoriously ambiguous treatment of affirmative action. The lack of clear limits and guidelines in affirmative action has left many questions to be answered on a case-by-case basis, and therefore leaves the future of affirmative action open to interpretation. However, it can be difficult to determine which way the Court will lean until a ruling is issued. As Robert Barnes of the Washington Post observes, “the splintered decision showed how divided the court remains considering the issue of race.”

Furthermore, with the recent installation of a Democratic administration, the court is soon expecting a change. Justices Ginsburg, Stevens, and Souter are all expected to retire during Obama’s first term. Although no Republican appointees are expected to retire and the currently equal ratio of liberal to conservative justices will continue, new justices still have the power to change the atmosphere of the court and to win over Justice Kennedy, who notoriously oscillates between the two camps. “It’s a brand new world,” CBS legal analyst Andrew Cohen emphasizes, “and it provides Obama with an opportunity to place into power, within the world of the law, cornerstones of his commitment to a new style of governance.”

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