Gerrymandering Isn't Apartheid

October 19, 1994

A federal panel of three judges overturned Georgia's congressional districting scheme last month on the grounds that a district was an unconstitutional "racial gerrymander," drawn with the sole purpose of creating a black majority. Earlier, another federal panel ruled that three Texas districts drawn to facilitate the elections of minority candidates "bear the odious imprint of racial apartheid."

Both panels were inspired by the Supreme Court's 1993 decision in a North Carolina case in which Justice Sandra Day O'Connor wrote that a district whose residents have "little in common with one another but the color of their skin bears an uncomfortable resemblance to political apartheid." In Louisiana also, a panel of appellate judges has ruled that "majority minority" districts do not pass constitutional muster.

The Supreme Court's 1993 decision did not compel such rulings. It said only that when such districts are created for the benefit of minorities, non-minorities have a right to go to court and demand "sufficient justification" for them. We wrote in 1993 that constitutionally speaking we agreed with the dissenters in the North Carolina case, who said such districts are constitutional, since no right or benefit is lost by white voters in a majority minority district.

We also said of the 1993 ruling that while we could foresee justifications for a state's designing congressional districts on the basis of race, we were uneasy about it. This isn't "apartheid." That's hyperbole, if not demagogy. But it does tend to "Balkanize [Americans] into competing racial factions," as Justice O'Connor said.

The Supreme Court is going to have to resolve this question, which is being dealt with in different ways by lower court judges. In the case the Supreme Court sent back to it in 1993, a Fourth Circuit panel has again upheld the North Carolina districts, saying that past racial discrimination gives the state a "compelling" interest in racial gerrymandering today. Just the opposite of the view taken in Georgia, Texas and Louisiana. The highest court may well side with the judges in those three states. All five of the Supreme Court justices who criticized such gerrymandering in 1993 are still on the bench. But two dissenters from the decision have retired.

However the law and Constitution are interpreted in cases like this, the true resolution of racial politics in this country is going to come not from judges but politicians. One encouraging sign last summer that this will happen sooner rather than later took place not in a courtroom but in voting booths in Missouri, where a black candidate, Rep. Alan Wheat, won the Democratic nomination for the U.S. Senate in a primary in which most voters were white.

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