Whitey’s America

 When North Carolinians went to the polls in November 1992, Eva Clayton and Melvin Watt became the first two blacks their state would send to Congress this century.

 In fact, only four other blacks had ever served as members of the Carolinian delegation: John Hyman (1875-77); James O'Hara (a carpetbagger who served from 1883 to 1887); Henry Cheatam (1889-1893); and George White (1897-1901). Never quite at the forefront of civil rights struggles, the election of Clayton and Watt was rightly interpreted as a watershed in the history of the state's minorities.

Reapportionment had made the event possible. That -- and of course 1982's amendment of the Voting Rights Act of 1965. A landmark piece of civil rights legislation, the Act granted the Federal Government the authority to supervise and enforce voting rights among the states under the Equal Protection Clause of the 14th Amendment (1868), and that clause's specific extension to minority voters under the 15th (1870). With this amendment, Congress finally took to heart the real-world setbacks that some 30 years of Equal Protection rulings had suffered, dating as far back as 1954's Brown v. Board of Education of Topeka, another landmark of the civil rights era. Most important, Congress replaced the 1965 Act's weak notion of discriminatory intent with the strong notion of equality of results, thereby enhancing the enforceability of the Act. A voting-rights violation would now be understood to occur whenever it could be shown that the "totality of circumstances" in a state's "political processes" worked against "members of a protected class" in such a manner that it "results in a denial or abridgment of the right.to vote on account of race or color.." Very few Federal interventions into this troubled area of U.S. society have ever taken as large a bite out of de facto racial discrimination as 1982's amendment of the Voting Rights Act.

This shift in the Act's focus from intent to results was decisive. It gave voting-rights enforcement a giant boost, well beyond its original focus on removing the impediments to minority voting. Such as the so-called literacy tests of the old South, North Carolina's turn-of-the-century requirement that blacks prove they could read and write before they could exercise their franchise being one of these classic Jim Crow laws. And the even more pernicious requirement that eligible voters be able to pay a poll tax, rendered unconstitutional by the 24th Amendment, ratified in 1964.

Throughout the 1980s, the Supreme Court continued to interpret this results-oriented shift in the Voting Rights Act as both a call for states to heighten their level of minority representation, and a prohibition against circumstances that might conspire to dilute the voting strength of the same.

In 1991, the North Carolina legislature re-evaluated the state's voting districts on the basis of its 1990 Census. Though blacks made up one-fifth of the state's voting age population, their geographic dispersion gave them a numerical majority in only five of its 100 counties. Acting under the revised Voting Rights Act, the Carolinian legislature created a single new majority-minority district (a voting district wherein racial minorities are in the numerical majority), and submitted its plan to the Civil Rights Division of the Bush administration's Justice Department. Questionable motives aside (suspicions abound that the Administration's real interest in reapportionment lay in salting away as many additional Republican strongholds as it could), Justice told the state that its redistricting efforts had not gone far enough. The legislature went back to the reapportionment board. When it was finished, North Carolina had created not one but two new majority-minority districts: Eva Clayton's 1st District, which flows from the northeast seaboard down the eastern end of the state; and Mel Watt's 12th, a long and mostly ribbon-like district that winds 160 miles from Durham in the north-central part of the state, along Interstate 80 to Gastonia, near the southern border.

Nor was North Carolina alone. Following the 1990 Census, a total of 14 states undertook reapportionment with the express purpose of living up to the then-prevailing interpretation of the Voting Rights Act as a call to enhance minority representation. This doubled the number of majority-minority districts across the United States, from 26 to 52. Whereas 16 blacks had served in the 102nd Congress that convened in 1991; just two years later, the newly reapportioned states would send a record 39 blacks to Congress: 38 in the House, and Illinois's Carol Moseley Braun in the Senate. With black representation in the 103rd Congress having grown to more than twice that of the previous term, surely something was bound to give. That something turned out to be the very legal foundation upon which the short-lived spike in black-voting efficacy had just been built.

Unhappy with the results of reapportionment, five Carolinians, all of them white, sued the Justice Department and their state. They claimed, correctly, that the peculiar shape of the 12th District had been determined by the state's desire to create a black majority district. This, they also held, violated their own voting rights under the Equal Protection Clause of the 14th Amendment -- a curious leap of reasoning, given that North Carolina still retained 10 predominantly white voting districts (83 percent of its total), while within the contested 12th District, blacks had gained but a slim 53 percent majority.

The challenge was denied by a special three-judge panel of a U.S. District Court for North Carolina, but later appealed to the Supreme Court. That's where the fireworks began.

In 1993's Shaw v. Reno, as the case came to be know, the Supreme Court ruled by a narrowly split 5-4 margin that due to its overtly "bizarre" shape, Carolina's 12th District "rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification," Justice Sandra Day O'Connor wrote, expressing the Opinion of the Court.

Once again, a very curious leap of reasoning had taken place. Either "sufficient justification" for reapportionment can be discovered in the history of a state's treatment of its minority citizens, or it can't be. If it can't be, reapportionment is uncalled for; if it can, then reapportionment is demanded by law. Whichever conclusion one draws from the evidence (and throughout the South, the evidence is overwhelming), any district that is created in accordance with the Voting Rights Act (etc.) will necessarily be a district in possession of a shape determined by the goal of enhancing minority representation. Whatever the ultimate shape of a district is, that district's justification will follow from how well it meets that goal, and only from how well it meets that goal -- but never from some intuitive reaction either on the part of voters or the courts to the shape of the district, however sensible or irrational it may appear. Shaw v. Reno confuses these issues. Bush's Justice Department had originally to show a Federal District Court that North Carolina's impressive track record of discrimination against blacks on the basis of their race served to deny them a fair and equal opportunity to gain representation in Congress. But in Shaw v. Reno, all that the five plaintiffs who brought suit against the Justice Department and the Carolinian legislature needed to show a majority of the Rehnquist Court was that the 12th District's shape is so "bizarre," it "resembles the most egregious racial gerrymandering of the past." Go figure.

A testament to the efficacy of political correctness (to the PC ideology, I mean), buzzwords were plentiful in the Court's opinion. "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," Justice O'Connor wrote. "Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions.." Incredulous, Justice Harry Blackmun observed in a terse dissent what he characterized as the irony of the fact that the "case in which today's majority chooses to abandon settled law.is a challenge by white voters to the plan under which North Carolina has sent black representatives to Congress for the first time since Reconstruction." But after very little reflection, our sense of irony ought to lift like an early morning fog before the rising sun. To put the matter as judiciously as possible, we are left with the sneaking suspicion that under actually existing American Apartheid, a majority of the Rehnquist Court regards the practice of race-conscious reapportionment for the benefit of minority voters to be unconstitutional per se.

After Shaw v. Reno the floodgates opened. The Court remanded Carolina's 12th District back to the lower court from which it came. Last summer, yet another three-judge panel ruled 2-1 that the state's serpentine district was a "justifiable invocation of a concededly drastic, historically conditioned remedy in order to continue the laborious struggle to break free of a legacy of racial bloc voting that has played a significant part in the inability of any African-American citizen of North Carolina, despite repeated responsible efforts, to be elected to Congress in a century." Both Rep. Clayton and Rep. Watt were elected to second terms in November. Opponents of the Voting Rights Act and minority political representation turned their sights elsewhere.

Other southern states fared less well. Reapportionment in Louisiana, Georgia, Texas, and Florida had led to the election of several black representatives in 1992, all of whose districts subsequently came under challenge. In Louisiana, it brought the 4th District's Cleo Fields to Congress; and in Georgia, the 11th District's Cynthia McKinney. Though both of them won re-election in 1994 after the Supreme Court issued a temporary stay of the challenges to the reapportionment that had made their victories possible, the Court also agreed to hear their challengers' arguments some time this year. Just this past April 19, Louisiana v. Hays and Miller v. Johnson, the challenges to Louisiana's 4th District and Georgia's 12th, were argued before the Court; it is expected to rule on them before the end of the present term. With Shaw v. Reno's solid block of Chief Justice William Rehnquist, and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas still intact (Byron White having been replaced by Ruth Bader Ginsburg, and Harry Blackmun by Stephen Breyer), optimism for a ringing endorsement of minority and civil rights is getting harder and harder to find.

That the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of." an illegitimate reason, such as race, gender, class or age, is the central principle among the 26 amendments to the Constitution.

The phrase makes its first appearance in Amendment XV of 1870, where it affirms the right of blacks to vote. It then recurs in almost the exact same form three other times, where it affirms the right of women to vote (XIX); the right of the poor (XXIV's banishment of the hated poll tax); and the right of young people who have reached the age of military service (XXVI).

But as the first Justice John Marshall Harlan noted in his dissenting opinion to Plessy v. Ferguson (the Court's 1896 ruling that the maintenance of "separate but equal" accommodations for whites and blacks did not violate the Equal Protection Clause of the 14th Amendment):"State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the [Civil War], under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races, the continuance of which must do harm to all concerned."

Fifty-eight years would pass before Brown v. Board of Education overturned Plessy. But today it's the Dred Scott Case that once more stalks the American landscape, under the pretense of the color-blind society, and a Supreme Court horrified at the thought of dividing the nation further along racial lines.