Many of you have followed the travels (or should I say travails) of the fleeing Texas Democrats — first the lower house members who fled to Oklahoma and, more recently 11 state senators who holed up in New Mexico — who tried, but have now failed, to prevent the legislature from passing redistricting legislation.
I think a good argument can be made that it’s not a good idea to engage in redistricting more than once a decade, although that does seem to be merely a custom rather than a legal requirement. On the other hand I can understand the position of Texas Republicans, who point out that the Democrats prevented them from redistricting last year and thus forced the matter into the hands of the courts. Now that the Republicans have a working majority in both houses (when, that is, the Democrats are in state) and a strong argument that a Congressional delegation with 15 Republicans and 17 Democrats is unfair in a state that is now heavily Republican, one can understand their desire to have Congressional districts designed by the legislature and not by the courts.
What I find most interesting, however, is the high dudgeon into which the Democrats have worked themselves in presenting this partisan struggle as a life and death struggle over … civil rights. As the Washington Post recently reported,
it was a measure of how incendiary the Texas fight over congressional redistricting has become when several of the chamber’s Democrats — all but two of them black or Hispanic — on Thursday denounced their all-white Republican brethren as racists, supremacists and bigots.
….
From the outset of their bitter fight over redistricting last spring, the Democrats have insisted that the Republican maps would disenfranchise minorities in Texas, who comprise nearly half the state’s population. They say the GOP’s goal — to shift five or six congressional seats into the Republican column — could be accomplished only by packing some blacks and Hispanics into “super-majority districts” while carving up other minority communities to dilute their electoral clout in districts that have elected liberal white Democrats to Congress.
Never mind that for years the creation of “majority-minority” districts has been sponsored, even demanded, by Democrats, and that, at least based on reports I’ve seen, the Republican redistricting plan in Texas would protect all current minority Congressmen. It is, I think, the Anglo Democrats who would be put at risk.
But, as I say, put all that aside. What is truly noteworthy here is that the Texas Democrats — and virtually all the press treatments of their plight that I’ve seen — ignore the argument the Democrats made, and made successfully, the last time this issue was dealt with by the Supreme Court. Of course it’s perfectly understandable why the Texas Dems, if not the press, ignore this argument, since it was exactly the opposite of what they’re claiming now.
Hunt v. Cromartie, 532 U.S. 234 (2001), was the third time the Court confronted the infamous 12th District of North Carolina, which in one of its incarnations had in places been no wider than a highway connecting two concentrations of black population. In those earlier cases the Court had said the racial motive behind the district lines was too nakedly clear to pass muster, but finally, in this case, Sandra Day O’Connor (surprise!) was induced to switch sides, and the latest version of the district was approved on a 5-4 vote.
The Democrats argued, and the O’Connor-including majority of 5 agreed, that here the record contained insufficient evidence to conclude that the predominant legislative motive behind the district was racial (impermissible) and not partisan (permissible).
Here are some telling excerpts from Justice Breyer’s majority opinion (citations omitted here):
The issue in this case is evidentiary. We must determine whether there is adequate support for the District Court’s key findings, particularly the ultimate finding that the legislature’s motive was predominantly racial, not political…. The Court has specified that those who claim that a legislature has improperly used race as a criterion, in order, for example, to create a majority-minority district, must show at a minimum that the “legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Race must not simply have been “a motivation for the drawing of a majority minority district,” but “the ‘predominant factor’ motivating the legislature’s districting decision.” Plaintiffs must show that a facially neutral law “is ‘unexplainable on grounds other than race.'”
The Court also has made clear that the underlying districting decision is one that ordinarily falls within a legislature’s sphere of competence. Hence, the legislature “must have discretion to exercise the political judgment necessary to balance competing interests,” and courts must “exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race.” Caution is especially appropriate in this case, where the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are highly correlated.
….
We concede the record contains a modicum of evidence offering support for the District Court’s conclusion…. The evidence taken together, however, does not show that racial considerations predominated in the drawing of District 12’s boundaries. That is because race in this case correlates closely with political behavior. The basic question is whether the legislature drew District 12’s boundaries because of race rather than because of political behavior….
In a case such as this one where majority-minority districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance.
The Democrats successfully argued to the Supremes, in short, that, because blacks so reliably vote Democratic, it is political and not racial to create Democratic districts by packing blacks into them. But now, according to Texas Democrats and their many sympathizers, if Republicans want to create Republican districts by holding down the numbers of Democratic/black voters, that is racist, bigoted white supremacy.
The more one looks at these debates, the easier it is to understand why liberals increasingly follow philosophers like Stanley Fish and flee from principled arguments.
For the record: creating race-based majority/minority districts is disgusting when the Republicans do it, and it is disgusting when the Democrats do it.
