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CURRENT SUPREME COURT CASES
Reaffirmation or Requiem for the Voting Rights Act?
Copyright 1996, The American Civil Liberties Union
The two Shaw copycat suits before the Supreme Court hold the key to the future of voting rights. Each challenges predominantly minority Congressional districts created following the 1990 census.
Miller v. Johnson. This suit targets Georgia's 11th district, represented by Cynthia McKinney, the first African American woman sent to Congress from Georgia. She is a prominent member of the influential Congressional Black Caucus, which supports adoption of a fair reapportionment plan.
Georgia officials agreed on a plan that would have increased the number of predominantly minority Congressional districts from one to two. But when the Justice Department objected to the plan, the state responded by creating three such districts, including the 11th.
After McKinney's election, the losing candidate led a small group of white voters in challenging the districting plan. Invoking Shaw, the plaintiffs claimed that the 11th district was unconstitutional because its "bizarre" shape could only be explained "as an expression of racial gerrymandering." But the district court found that, in redistricting, the legislature "contended with numerous factors -- racial, political, economic, and personal." In other words, the state plan "reflected many influences." In fact, the 11th district is no more strangely shaped than other districts drawn in Georgia. Moreover, 83 percent of its territory consists of whole counties -- much higher than the average.
Like everywhere else, the designs of all of Georgia's districts are, in large part, political. The 11th, for example, has an irregular border at one point, not to include more blacks but because the chair of the Senate reapportionment committee wanted to make sure his son's precinct was included. The 9th district, which is 95 percent white, was designed to bring together a distinctive Caucasian community in the state's northern mountains. Because the Democratic Speaker of the Georgia House did not want to be represented by Republican Newt Gingrich, his entire county was drawn out of that district, with other counties being split as a result.
The Speaker himself had this to say about redistricting: "There's hundreds of issues because there are hundreds of people wanting their property and their county in a different district." To single out and challenge only those districts drawn to consolidate minority votes, in compliance with the Voting Rights Act, is particularly indefensible given Georgia's long history of disfranchising black voters. Indeed, racial discrimination is so well documented in the state that the court in Johnson said it did not even need to hear evidence about it.
To remedy that history, vote dilution suits were filed against 40 cities and 57 counties in Georgia between 1974 and 1990. Almost all were successful, and every one of the remedial redistricting plans adopted was race-conscious. As the state's Chief Demographer said, "[i]f taking race into account were unlawful ... there is not a redistricting plan in the State of Georgia that would be valid." The predominantly minority districts have been overwhelmingly responsible for electing African Americans to state office -- only one of the 40 black members of the Georgia general assembly was elected from a majority/white district.
The three-judge panel found in Johnson that no one was harmed in any way by the new districts, but it still struck down the plan as unconstitutional. The ACLU and the NAACP Legal Defense and Educational Fund, Inc. (LDF), representing a group of black and white voters in appealing to the Supreme Court, won a stay allowing the 1994 elections to proceed. McKinney was re-elected but will likely lose her seat if the ACLU loses this suit.
Louisiana v. Hays. Louisiana's population is 30 percent black. Yet it was not until 1990 that the first African American since Reconstruction was elected by the state's first predominantly minority district. Two years later, after the Congressional reapportionment, a second predominantly minority district was created and a second black, Rep. Cleo Fields, was elected.
Forty percent of Fields' constituents in the new 4th district live in poverty. Previously, they were represented by white Republicans or by white "boll weevil" Democrats who voted against the Civil Rights Act of 1991 and opposed increasing the minimum wage. One of Fields' first proposals in office was to regulate the fees charged by check-cashing outlets, whose customers have no choice but to patronize such outlets because they are too poor to maintain bank accounts.
Typically, Louisiana's predominantly minority districts are the most diverse and integrated districts in the state. But a group of four voters challenged the redistricting plan and won in district court. The three-judge panel, declaring that "race-conscious redistricting ... is always subject to strict scrutiny," issued its own map for the 1994 elections that contained only one predominantly minority district, and that spread the rest of the minority population over six districts.
The decision was appealed to the Supreme Court, which granted a stay that allowed the elections to proceed under the old map. Fields was re-elected. If Hays is upheld, the constitutionality of all the Congressional districting plans -- and almost all the state and local plans -- currently in place throughout the South would be in question.
These two cases will be decided together. An adverse ruling could cement the direction the Court charted in Shaw and reverse the flow of minorities into elected office.