An ally no longer

March 17, 1994|By Salim Muwakkil

THE SUPREME Court used to be an ally in the fight for civil rights. But now the court has cast suspicion on the legality of race-conscious districts, setting off a legal offensive to reverse decades of black electoral progress and undermine civil rights.

The battle front is in North Carolina, where District 12 zigzags in a thin ribbon connecting black population centers across the state. Drawn according to the provisions of the amended Voting Rights Act, the district is designed to assure a black majority, and thus a probable black representative.

District 12 is arguably an odd-shaped entity, but the state maintains that the district has an urban identity that transcends race. It was created to respond to federal dictates to fix a problem: 22 percent of North Carolina's population is African-American, yet the state had not sent any blacks to Congress since the turn of the century. This situation was rectified by the election of black lawyer Mel Watts in District 12.

But a group of whites took the state to court, charging "racial gerrymandering." Because creation of the district was based entirely on race, they argued that it violated the 14th Amendment's equal protection clause.

Last June, the Supreme Court sent the case back to the lower court to review the plaintiff's claims.

Writing for a 5-4 majority, Justice Sandra Day O'Connor said District 12 "bears an uncomfortable resemblance to political apartheid." Despite the clear lack of representation for blacks, Justice O'Connor argued that race-conscious efforts to aid minorities should be subject to the same constitutionally stringent standards as racist measures against minorities.

"Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions," she wrote.

This argument has wide implications, since the Voting Rights Act, and especially a 1982 amendment, clearly stipulate race-conscious remedies for past deprivation. Justice O'Connor hinted that the Voting Rights Act itself may violate the Constitution, and lower courts and assorted litigants have seized on her "racial apartheid" comments.

In the wake of Shaw vs. Reno, virtually every minority district in the country -- from school board to Congress -- is now vulnerable to constitutional challenges.

This is a huge setback, since the Voting Rights Act is responsible for

one of this era's few African-American success stories. When the original act passed in 1965, there were 280 black elected officials in the entire country; in 1993 there were more than 8,000.

Those gains are now threatened. Lawsuits in five states -- North Carolina, Georgia, Florida, Louisiana and Texas -- directly challenge the constitutionality of districts created to increase African-American representation.

All of these districts are represented by first-time black members of Congress whose presence has brought African-American representation closer to a proportionate level than at any time in our history. African-Americans are about 12 percent of the U.S. population, and recent elections brought their numbers up to about 9 percent of House members. With Illinois Sen. Carol Mosely-Braun sitting in the upper chamber, the Black Congressional Caucus now has 40 members.

Justice O'Connor argued, strangely, that the problem with North Carolina's 12th District is not that it segregates voters on the basis of race, but that it looks "bizarre" and thus appears to segregate voters on the basis of race. She repeatedly noted her aesthetic distaste for the district, using words like "tortured," "dramatically irregular" and "irrational." She failed to note that such "bizarre" electoral constructions are not at all uncommon.

The Supreme Court ruling itself is a bizarre construction. The 14th Amendment was adopted specifically to ensure the rights of former slaves. To argue that it can no longer be used as intended, but must be used instead to guarantee the rights of whites, is nothing if not "tortured" and "irrational."

Fortunately, the Clinton administration has joined the state of Georgia in its defense against the redistricting challenge, and has also sought permission to act as a friend of the court in the North Carolina and Texas challenges. This is a step forward for an administration that failed to defend Lani Guinier when she was attacked for struggling with the same difficult questions of representation.

The Supreme Court is perpetuating the myth of a colorblind America. This myth denies the consequences of slavery's crippling, racist legacy. If we fail to find new and compelling arguments to legitimize race-conscious remedies, the prospects for genuine racial equity will slip away.

Salim Muwakkil is a contributing columnist for the Chicago Sun-Times and a senior editor of the magazine In These Times.

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