The Return of the Yellow Gerrymander

The Return of the Yellow Gerrymander

The Return of the Yellow Gerrymander

Oral argument from the court.
Nov. 28 2000 3:00 AM

The Return of the Yellow Gerrymander

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Inside the Supreme Court chamber, it's business as usual as the Big Nine snuggle down with the same racial redistricting case they have been hearing and re-hearing for eight years. In the hallways it's nuts, as cafeteria ladies, security guards, and flacks gear up for the media tidal wave slowly working its way up from Florida and scheduled to hit the High Court on Friday.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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There are subtle common themes between today's redistricting case and Bush v. Palm Beach County. For instance, nobody can figure out why the court has agreed to hear either case.

This morning, everyone is talking about the C-SPAN (and impending CNN) request to televise Friday's proceedings. Someone speculates that maybe the justices will agree to being televised if their faces are blurred (like the belligerent drunk wife-beaters on COPS), or maybe they'll relent and allow radio coverage without images (like it's 1939 and this is a fireside chat), or maybe they'll allow an animated cartoon special of themselves ...

Some of us Supreme Court beat reporters and sketch artists are sweating. Might Friday spell the demise of this last bastion of inner-sanctimony? Will Greta Van Susteren and her band of merry men roll the cameras in right over our twitching, un-telegenic corpses?

But before we embark on today's case, let's pause for a quiz. It's called: What is this yellow thing? Is it:

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a) The forked tongue of the North Carolina state legislature?

b) A naked woman diving backward out of Congressional District 9 into Congressional District 6?

c) The largest McDonald's franchise ever constructed? Or:

d) The 12th District of North Carolina's 1997 congressional redistricting plan?

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If you answered d) it's probably because you, like me, can't quite shake the feeling that you already read this case in law school. Take comfort. Probably even Justice Stevens feels that way. You have seen the case before. Today it's called Hunt v. Cromartie, but you may remember it from one of its earlier incarnations as Shaw v. Reno (1993), Shaw v. Hunt (1996), or Hunt v. Cromartie Part 1 (1999).

Each of these four cases involve North Carolina's District 12, which first snaked its way into our hearts back in 1992 when—at the request of the Justice Department and to comply with the Voting Rights Act—North Carolina created two majority-black congressional voting districts. In places, District 12 did nothing more than follow the interstate highway as it cobbled together an area that was 57 percent African-American. In the first case, Shaw v. Reno, the Supreme Court held, in a 5-4 decision, that North Carolina's attempt to "separate voters into different districts on the basis of race" created, according to Justice O'Connor, "political apartheid." The court was particularly grossed-out by District 12's "bizarre shapes ... winding, in snake-like fashion through tobacco country, financial centers and manufacturing areas until it gobbles in enough enclaves of black neighborhoods." Democratic Rep. Mel Watt was elected as a result of that gerrymander and, with Democratic Rep. Eva Clayton, North Carolina sent its first black members to Congress since 1901.

Shaw held that districts apportioned as weirdly as the 12th were clearly the result of efforts to create majority black districts, thus violating the equal protection rights of white voters. After Shaw was remanded to the district court and again ruled an impermissible exercise in racial gerrymandering in Shaw v. Hunt, North Carolina enacted a new congressional redistricting plan reducing the size of the snakey district and decreasing its percentage of African-American voters to 47 percent. White voters again filed suit, and again the case found its way to the Supreme Court. In 1999, the court reversed a summary judgment (this time invalidating the district as an impermissible gerrymander). So the case went back to the federal district court where a 2-1 panel held that the 12th district was still unconstitutional.

Poor snakey 12th District.

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The North Carolina Legislature argues that if it can't create a deliberate black district, and can't create a deliberate Democratic district (because the court sees that as a proxy for a black district), then it cannot satisfy the minority-vote dilution requirements of the Voting Rights Act. On the other hand, argue the white voters of North Carolina, if the state can finger-paint squiggly-wiggly voting districts halfway down the freeway, and justify them as neutral political decisions, as opposed to racial ones, the anti-discrimination message of Shaw v. Reno will be lost.

Today, the court looks again at the decision-making process that led to the North Carolina snake. Former Solicitor General Walter Dellinger argues for the state legislature and almost immediately faces off against O'Connor, the most likely swing vote on this case. She is worried about reversing a factual finding in the district court and suggests that although she may not have found the facts to be as the lower court found them, "how are we to upset that?" Dellinger responds that there was no evidence underlying key findings of the lower court, specifically that decisions to include or exclude specific areas were based on race as opposed to political affiliation.

Dellinger and Kennedy tango over whether districting decisions based on political affiliation are simply proxies for color. Dellinger reminds the court that race can be a factor in redistricting; it just can't be the predominant factor. The problem in all these gerrymander cases is that one must use clairvoyance, astral projection, or the "smoking gun" e-mail to divine what actually animated the legislature's redistricting decisions. Scalia reminds Dellinger that there was just such a smoking gun in Cromartie, notably an e-mail from the drafter of the redistricting plan to two state senators, explaining that he'd added the "Greensboro Black Community" to the snake. When Scalia asks Dellinger about the e-mail, Dellinger replies with a three-pronged defense as to why the e-mail is not probative of a predominant racial purpose in laying out the district.

Dellinger splits his time with Adam Stein, who runs into the O'Connor snag almost immediately. She wants to know how she's supposed to disregard the expert testimony of a trial witness on whom the lower court relied. Stein wades into swampier territory when he justifies the most recent redistricting plan as "incumbent protection." Scalia retorts that protecting an incumbent who was only elected as a result of an unconstitutional gerrymander doesn't justify redistricting either.

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Robinson O. Everett argues this case for the white voters of the district. He speaks in the same sweet loping Southern drawl as Dellinger, and I half expect one of the hyper justices to lean over the bench, cut him off, and yell, "Talk faster." It's Stevens who cuts Everett off, though, several times, when he dodges a question about the legitimacy of incumbent protection in redistricting. Shortly thereafter, it's O'Connor cutting him off, shortly, for dodging one of her questions.

The question for which Everett seems surprisingly ill-prepared comes from Ginsburg and has to do with his own client's suggestions for a more viable district—one that would turn out to be even more bizarre in shape than the existing area.

Ginsburg asks whether common problems, "housing, healthcare, deteriorating schools," might not unite the areas inside the snake into a "community of interest." Everett replies that citizens of Greensboro, Winston-Salem, and Charlotte are not divided into black and white populations. "They watch the same TV shows," he says, "read the same newspapers."

Ginsburg replies, almost sadly, "I'm not 100 percent sure." She notes there are areas even in Washington "that have more in common with Boston." She adds that Anacostia and Northwest D.C. have little community of interest.

The 12th District looks like a gerrymander and it quacks like a gerrymander. It was born of the mandate to increase black "voting strength" and was then held unconstitutional as a violation of the rights of white voters. As with so many affirmative action projects in the hands of the courts, it seems to have stalled between a rock and a hard place. Ultimately, this case again raises the question: Does it make sense to keep insisting on a "color-blind" government in a color-blocked world?