Supreme Court Dillutes Minority Voting Districts

The New York Times

March 10, 2009

Justices, 5-4, Set Limit on Sweep of Voting Law
By ADAM LIPTAK

WASHINGTON — Only election districts in which minorities make up at least half of the voting-age population are entitled to the protections of a part of the Voting Rights Act that seeks to ensure and preserve minority voting power, the Supreme Court ruled on Monday.
Officials in North Carolina had argued that the act required them to help maintain black influence at the voting booth by creating a district that included about 39 percent of the black voting-age population. The theory was that the law protected black voters who joined with white “crossover voters” to elect a candidate of the black voters’ choice. The court rejected that argument by a 5-to-4 vote.

Congress did not specify what percentage of minority voters in a district would call for the protections of Section 2 of the Voting Rights Act of 1965 when it later prohibited what courts have termed “vote dilution.” And the Supreme Court until now had avoided picking a number.
The district at issue in the case, which the North Carolina General Assembly created in 2003, was the consequence of an effort to preserve minority voting power notwithstanding changing demographics and legal concerns about the district’s shape. North Carolina officials settled on combining parts of two counties to create a relatively compact district that they said maintained “an adequate representation of black voters,” which was, in their view, 39 percent.

In rejecting the district, the Supreme Court effectively reduced the number of voting districts in which the Voting Rights Act will mandate that minorities play a dominant role. The bright-line 50 percent rule also makes litigation over the legality of particular districts less likely.
“The decision turns 50 percent into a magic number,” said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles.

Richard H. Pildes, a law professor at New York University whose work the justices cited many times in the decision Monday, said that current events, including the fact that both major political parties are led by African-Americans, had complicated the legal landscape, creating “tremendous pressure on a statute that was primarily structured for an earlier era in which blacks were completely excluded from office.”

The decision resolved a question the court had left open in earlier decisions, and it touched off a sharp debate among the justices about how best to protect minority voting rights without cementing racially polarized voting.

In dissent, Justice David H. Souter — writing for himself and Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens — said the upshot of the decision would be more racial polarization. It will require states “to pack black voters” into districts in which minorities make up the majority, Justice Souter said, “contracting the number of districts where racial minorities are having success in transcending racial divisions.”

Nonetheless, some legal experts said the impact of the decision might be relatively minor. “How many districts will not be drawn as a result of this decision?” asked Nathaniel Persily, a law professor at Columbia. “The answer is very few.”

Whatever its practical impact, the decision contained important hints about how the justices will approach the term’s more significant Voting Rights Act case: one that concerns Section 5 of the act, which requires jurisdictions with a history of racial discrimination to obtain the federal government’s permission before changing voting procedures.

Justice Anthony M. Kennedy, who wrote the controlling opinion on Monday and will almost certainly be in the majority in the next case, signaled that he was alert to the legacy of racial discrimination and in favor of only incremental steps in cutting back on the sweep of voting rights protections.

“Racial discrimination and racially polarized voting are not ancient history,” Justice Kennedy said. But the goal of the Voting Rights Act, he continued, was to “hasten the waning of racism in American politics” rather than to “entrench racial differences.”

In all, said Heather Gerken, a law professor at Yale, Justice Kennedy’s statements “bode well for the constitutionality of the Voting Rights Act” in the case to be argued in April, Northwest Austin Municipal Utility District v. Holder, No. 08-322.

The district at issue in Monday’s decision, Bartlett v. Strickland, No. 07-689, violated the North Carolina Constitution, which forbids dividing counties when drawing legislative districts. County officials sued, and state officials defended the boundaries by saying the district was required by the Voting Rights Act. The State Supreme Court ruled that only districts in which minorities made up 50 percent of voters were covered by the provision in Section 2 of the act, which protects minority voting power.

Before the 2000 census, the predecessor to the disputed district had a black voting-age population of about 56 percent. After the census, the population fell below 50 percent, and concerns were raised about the shape of the old district.

State officials decided to violate the State Constitution in order to comply with their understanding of the Voting Rights Act, which they contended would be satisfied with a relatively compact district that included parts of two counties and a black voting-age population of 39 percent.

The act itself does not answer the question of what percentage of potential minority voters is required. It requires courts to look at “the totality of the circumstances” to decide whether some groups “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

But the Supreme Court suggested in 1986 that there may be a 50 percent threshold, and on Monday it made that suggestion into what Justice Kennedy called “an objective, numerical test” that “draws clean lines for courts and legislatures alike.

“Nothing in Section 2 grants special protection to a minority group’s right to form political coalitions,” said Justice Kennedy, who was joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “There is a difference between a racial minority group’s ‘own choice’ and the choice made by a coalition.”

Justice Souter presented data to support his point that the 50 percent line was arbitrary and counterproductive. In 2004, he wrote, seven of nine North Carolina State House districts in which blacks made up the majority of the voting age population had elected black representatives. But so did 11 of 12 additional districts in which the voting age population was at least 39 percent black.

Justice Clarence Thomas, joined by Justice Antonin Scalia, voted with the majority but did not adopt Justice Kennedy’s reasoning.

Justice Thomas said Section 2 of the Voting Rights Act did not protect even districts in which minority voters represented a clear majority. So-called vote-dilution claims, he wrote, quoting his own earlier opinion, have produced “a disastrous misadventure in judicial policy making.”