Yesterday the Supreme Court heard two cases in which black plaintiffs claimed that Virginia (Bethune-Hill v. Virginia State Board of Elections) and North Carolina (McCrory v. Harris) discriminating against them in the way they created “majority-minority” legislative districts. “The claim made by black voters in both states,” the Associated Press reports, “is that Republicans created districts with more reliably Democratic black voters than necessary to elect their preferred candidates, making neighboring districts whiter and more Republican.”
Based on the now routinely disproven assumption that whites will not vote for blacks and blacks will not vote for whites if a black candidate is available, the Voting Rights Act as currently interpreted requires states to create districts containing enough blacks to allow them to elect “representatives of their choice.”
Since one of these cases is from Virginia, and since the arguments haven’t changed over the past decade or so, I feel not only entitled but virtually compelled to re-post verbatim what I had to say over a decade ago about the bipartisan hypocrisy of these arguments:
The arcana of racial redistricting, such as the nature of “retrogression” under Section 5 of the Voting Rights Act, make racial preferences in college admissions look pretty clear and uncomplicated. I hesitate to venture into this dismal swamp without a guide. But … blogs are full of guides, and I trust someone will correct any mistakes that follow. With that invitation on the table, my take is roughly as follows:
The DISCRIMINATIONS Hypocrisy Award goes to the Republicans. Under Bush I they realized that they could trumpet their fidelity to the Voting Rights Act, and by implication to black voters, by herding black voters into “majority-minority” districts that would be likely to elect black representatives for the first time. And by draining the surrounding districts of black, i.e., Democratic, votes, the policy would have the added benefit — purely incidental, I’m sure — of electing more Republicans. The Democrats, unable to oppose procedures that would lead to the election of more blacks, were effectively silenced and co-opted.
It was a brilliant tactical move, sacrificing only principle. Twenty-six such districts were created after the 1990 census, greatly contributing to subsequent Republican gains in the South.
The necessity for “majority-minority” districts was based on the assumption of “bloc voting,” that whites wouldn’t vote for blacks, but it did not take long for that assumption to be proven false. Once it became clear that super-majorities of blacks were not necessary to elect at least a significant number of blacks, the Democrats slowly emerged from the woodwork and began to argue (remember, they’ve never been addicted to consistency) that herding too many of blacks into “majority-minority” districts was racist, smacking of apartheid. At the same time, however, they argued that placing too few blacks in a district was also racist. To the Democrats, “too many” means more than enough to assure the election of a Democrat, and “too few” means not enough. By some cosmic co-incidence, the Democrats implicitly argue, that precise balance is what the law requires. This behavior thus has earned the Democrats the much-deserved DISCRIMINATIONS Award for Brazenness.
Both parties, in short, have proven themselves unprincipled. When the Republicans took over the state government in Virginia recently, for example, they moved quickly to round up as many blacks as possible and, freely admitting they were “taking race into account” as one factor among many (sound familiar?), herded them together in as few districts as possible. Not to be undone on the unprincipled front, the Democrats brought in heavy hitter Ronald Klain, Gore’s top advisor and head lawyer in the Florida recount, who, presumably with a straight face, argued to the Virginia Supreme Court: “We submit that what was going on here was race-conscious districting….” (Washington Post, Sept. 13, 2002, p. B5) The Virginia Supremes (including the new black chief justice) were not amused, and ruled for the Republicans.
With parties like these, I’m sometimes surprised that anyone at all bothers to vote.
So, the Supremes find themselves time and again wrestling with the question, “How many is ‘enough’?” (see yesterday’s oral argument here, turning often on the meaning of “predominant”).
My recommendation: The Court should say emphatically, “Enough is enough!” and get out of the redistricting oversight business altogether except where actual discrimination is alleged, thus returning to the original intent and understanding of the Voting Rights Act.
