High Court May Draw Line on Racial Districts

By taking up this voting rights case, the Supreme Court shows willingness to hear, and not duck, the hard issues

Issues of race and fairness remain the nation's unfinished business. For four years the US Supreme Court has been reexamining venerable voting rights laws from the 1960s - questioning whether the issue of race should still play a role in the creation of minority congressional voting districts.

Today, the high court wrestles with racial redistricting laws yet again, trying to clarify its recent rulings that have often divided and confused both the court and the larger society. A case out of Georgia, one of two the court hears today, may help the justices find some clarity. Yet whether the court can find a practical solution to claims of racial bias made by both whites and blacks is unclear.

Some justices argue for a racially "color blind" system. Others feel race is still an important factor in creating voting districts, but object to the often bizarre and impractical shape of the new districts.

Under the Voting Rights Act of 1964, states with a history of racial prejudice must allow minority citizens equal protection at the ballot box. The Department of Justice is responsible for ensuring that states comply in creating districts that match the proportion of minorities in the state.

The question today is whether a district court in Georgia complied with the Voting Rights Act when it recently eliminated two "majority minority" districts in the state. The two districts, the Second and 11th, had been created by the state legislature after the 1990 census - in order to comply with the federal civil rights law. That increased the number of racial districts in Georgia to three out of 11.

But after the Supreme Court ruled in 1995 (Miller v. Johnson) that the new 11th District occupied by Rep. Cynthia McKinney (D), had not been created properly - a district court ruled that Georgia only needed to have one majority minority congressional seat. The plaintiffs before the US Supreme Court today say at least one more district is required. (Representative McKinney, an African-American, was reelected in November in a redrawn district that is now majority white.)

The recent history of reconsidering race has not been simple. Four years ago the high court ruled in a cloudy but important decision written by Justice Sandra Day O'Connor, (Shaw v. Reno) that the shape of the often spidery racial districts, whose boundaries may be the width of a highway in some Southern states, must be more "compact." The next year, a deeply split (5 to 4) court in the Miller case changed its rationale on redistricting, finding that race could not be a "predominant, overriding" factor in creating districts. Last term in Bush v. Vera the court began the process of spelling out what "predominant" meant; yet in a concurrance to her own opinion Justice O'Connor said race could be a predominant factor, so long as the shape of the district is not bizarre, but compact.

The fact that the court is still trekking through perceived legal swampland on racial redistricting has caused Justice David Souter, in a dissent last term joined by Justices Stephen Breyer and Ruth Bader Ginsburg, to say the entire four-year enterprise has been conceptually flawed.

A "failure to provide a practical standard for distinguishing between the lawful and unlawful use of race," Justice Souter wrote, has resulted in "inevitable confusion."

The solution harder-line conservatives like Justices Antonin Scalia and Clarence Thomas desire is simply to rule race out of the equation entirely. Deborah La Fetra of the conservative Pacific Legal Foundation, who filed a brief on behalf of Georgia, agrees.

"It is appalling to believe that skin color determines how people think," she says. Moderate conservatives on the court, however, do not advocate such measures.

The voting rights case is another example, court watchers say, of a current term that is shaping up to be one of the more interesting and dynamic in recent years.

Last Friday, the court agreed to hear what could be a landmark case determining the status of free speech in cyberspace. The case, Reno v. ACLU, will determine whether the Communication Decency Act of Congress, passed last term to keep certain language and images off the Internet, is constitutional.

In recent years, the court took a shrinking number of cases, many of them technical only - leading some scholars to feel the court too quickly "ducked" hard issues. This year, whether by design or circumstance, the high court is dealing with a greater number of major high profile cases.

"This is the most important docket since the 1991 term and the Casey decision [affirming a woman's right to choose an abortion]," says David O'Brien, who publishes a court review in Charlottesville, Va. "Look at the 'right to die' case. Some of us are calling this the term of the decade."

In coming months, the court will take up cases on gun control, doctor-assisted suicide, religious freedom, and government aid for parochial schools. Justices will also hear the Paula Jones case, deciding whether President Clinton has immunity from civil suits while in office.