THE DIVIDING LINE: NORTH CAROLINA AND THE GERRYMANDER

 

The right to vote -- the right to check yes or no, Republican or Democrat -- is as vital to the American pulse as free speech and religious choice. Although too many North Carolinians shrug off their duty to vote, they raise their voices when the status quo comes under fire. Few issues raise blood pressure like a challenge to established patterns of voting rights.

Race relations cause similar social tremors. North Carolina’s history of discrimination against minorities, particularly blacks, is embarrassing and remains a political hot spot to this day. But when the fiery cauldrons of voting rights and race relations meet on one battlefield, everyone who heads to the voting booth election day has something at stake.

The majority-minority voting district is the weight that tipped the state’s political scale into imbalance. These districts first appeared in the 1980s as attempts to increase minority voices on Capitol Hill and further effectuate equal representation. Some even say these districts are attempts to mend the injuries of America’s years of slavery and discrimination.

As the decennial census rolled around in 1990, majority-black districts peaked in population, as did lawsuits challenging them as unconstitutional, but nowhere more so than in North Carolina. The right to vote, the right to fair representation, and the nation’s tainted past met in the courtrooms of the Tar Heel State.

 

The Thin Line of Stability
 

North Carolina’s congressional voting districts are somewhat enigmatic. Many twist and pivot across the state’s 100 counties, "bug splatters" spanning miles upon miles and separating towns, communities, and neighbors. Several split counties into two, sometimes three districts. After the 1990 census, the 6th and 12th districts overlapped and occupied the same points in Guilford and Davidson counties, a dubious layout at best (O’Rourke 1995). Fortunately, no one lived at those points, allowing the General Assembly to avoid assigning a voter to two districts.

But that wasn’t always the case; at least it wasn’t always so severe. District lines based on the 1980 census divided only four counties and created fairly compact districts. The General Assembly shook things up from Murphy to Manteo when it redrew district lines after the 1990 census. The state received a 12th seat in the U.S. House of Representatives -- and thus a 12th district -- and the resulting lines split 44 counties and more than a dozen cities (O’Rourke 1995).

The eleven original districts were majority-white, as most have been in state history, while the new 12th District was majority-black. The district snaked through Durham, Greensboro, and Charlotte, treading a 160-mile path sometimes no wider than Interstate 85. It cradled black neighborhoods and weaved between white communities, a recipe for constitutional disaster under the 14th Amendment(O’Rourke 1995).

The N.C. legislature submitted the plan to the U.S. Justice Department for preclearance, a condition of the Voting Rights Act of 1965. Under Section 5 of the act, counties with a history of racial discrimination must submit all election law changes for special approval, or preclearance. Forty North Carolina counties fall under the act’s scrutiny, including seven in the proposed 12th District (O’Rourke 1995).

The Justice department rejected the plan, insisting the legislature could have created a second majority-black district. Under preclearance, state governments must create majority-black districts when possible without abridging others' voting rights. Failure to do so is usually considered a violation of the act.

The plan returned to the drawing board in Raleigh. The first revision allowed for the 12th District as drawn, but redrew the 1st District as a majority-black district. The Justice Department approved. But certain irregularities did not escape the eyes of some voters and the N.C. Republican Party. The 12th District retained its serpentine gaunt across the Piedmont, and the new 1st District "splattered" the coastal plains, its arms grouping rural black communities under a single roof (O’Rourke 1995). The gears were turning inside the GOP war horse, despite the districts’ positive impact on minority representation.

Nationwide, the number of majority-black districts doubled between 1990 and 1993, from 29 to 52, and the number of black representatives in Washington, D.C., leaped by 50%, from 26 to 39 (Parker 1995). In North Carolina, the number of black representatives serving in the General Assembly and in Congress increased 87%, from 15 to 28, between 1989 and 1993 (Statistical Abstract of the United States 1993, 1996).

Looming in politicians’ minds in 1992 was whether the General Assembly should directly help minority voters advance politically, the modus operandi since the 1960s. Is it appropriate, given the state’s history of segregation and Jim Crow laws, to engineer districts that allow blacks to be elected to Congress? they asked. Or should districts be arbitrary and color-blind, as the Republican Party wanted? Several voters drawn into the 12th District agreed with the GOP and filed suit in federal district court. The fire was stoked, and the licks of heat would reach the highest bench in the land.

 
Shaw v. Reno

 

Two sides quickly formed along the trenches. One was largely Republican, the state party and several white voters from Durham placed in the new 12th District. Those voters felt cheated, that their voices were silenced, victims of the gerrymander. "One person, one vote," they cried, upset that their votes were neutralized by an engineered racial majority. In federal district court, they charged that the 1st and 12th districts were political gerrymanders by the state Democratic party. They charged democrats in the General Assembly with grouping black voters to capitalize on their largely liberal votes. They also focused on 14th Amendment violations, a literal mantra for equality since the Civil War.

The second enlisted mostly blacks, Democrats, and minority activists. They felt these district should serve as precedents for the future. Proponents claimed the districts increased minority opportunities without harming other voters. It was seen as a chance to correct past wrongs and level the playing field. They saw no truth to conservatives’ claim of political gerrymander, only the reality of minorities’ under representation in Congress.

Dianne Pinderhughes, a professor of political science and Afro-American studies, summed up the minority argument: "Between 1871 and the end of the 19th century, four African Americans were elected to the U.S. House from North Carolina .... Structuring majority-minority districts, while not the only or best solution, comes to grips with the history of discrimination in American politics and attempts to rethink the fundamental issues of representation, equality, and fairness in the political system" (Pinderhughes 1995).

The three-judge panel in district court took the state’s racial history into account, finding no personal injury to the appellants or constitutional abridgment of their voting rights. They rejected the lawsuit. Ruth Shaw and appellants appealed to the U.S. Supreme Court and focused their argument on the issue of racial, rather than political, gerrymandering.

The Supreme Court’s view of the issue was considerably different than the district court’s. In the majority opinion, Justice Sandra Day O’Connor wrote that "it is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past" (Shaw v. Reno 1993).

The Court weighed several criteria into its decision, including the state’s racial history, the meaning and consequence of voting rights, and general voting patterns by race. The same swath of information from the district court was at the Supreme Court's hands, but it's mood was unmistakably different, as O’Connor’s comments indicate. The 12th District winds in snake-like fashion through tobacco country, she wrote, "until it gobbles in enough enclaves of black neighborhoods" to create a majority (Shaw v. Reno 1993).

The Court ruled 5-4 in favor of the appellants, striking down North Carolina’s redistricting plan as unconstitutional. The Court agreed with the district court’s ruling against political gerrymandering, but when the appellants focused on racial gerrymandering, the Court’s mood changed.

Strangely, the appellants made no claim to the Supreme Court that the North Carolina plan diluted white voting strength and did not even claim to be white (which they were), but instead focused on citizens’ constitutional right to vote in "color-blind" elections. Due to the convoluted shapes of the 1st and 12th districts, the Court said the plan could not be viewed as anything but an effort to segregate races for voting purposes. In the Court’s opinion, this was unconstitutional.

The Court’s decision was based on two arguments: one against racial bloc voting and another in favor of "compact districting." The majority opinion was very clear on the first issue, adamantly denouncing the grouping of voters by race. O’Connor said the district plan perpetuated racial stereotypes and invited racism and discrimination.

"Classifications of citizens based solely on race ... threaten to stigmatize persons by reason of their membership in a racial group and to incite racial hostility," she wrote. "When a district obviously is created to effectuate the perceived common interests of one racial group, elected officials are more likely to believe their primary responsibility is to represent members of that group, rather than their constituency as a whole" (Shaw v. Reno 1993).

Critics of the decision say white voters have no constitutional right to representation by a member of their own race and that majority-minority districts give blacks increased and much-deserved opportunities to serve in Congress. Since arbitrary districting would erase many majority-black districts, minority activists contend that minorities’ political voices would be diluted unconstitutionally if district lines were color-blind.

But another question is raised, whether black voters are entitled to representation by a member of their own race. Can white voters be denied a "right" granted to black voters because one cohort is a minority and is thus underrepresented on Capitol Hill? Does North Carolina’s history of discrimination justify these special districts in light of its racist past?

The Supreme Court says no in both cases, that majority-minority districts reinforce harmful and fictional stereotypes. In Thornburg v. Gingles (1986), the Court recognized North Carolina’s history of discrimination at the voting booth and ordered the General Assembly to redraw state legislative lines to allow more black to serve in Raleigh. But this proactive stance all but disappeared in Shaw v. Reno with the Court’s insistence on racially blind fairness. However, it did not eliminate these districts within the state, only insisting they be drawn in a more race-neutral manner. Less proactive, yes, but the Supreme Court did not want to eliminate the obvious opportunities majority-minority districts presented.

To some, though, the Court’s argument against racial blocs did not hold. Frank Parker, a law professor at the District of Columbia School of Law, said there were indeed racial differences in voting preferences, especially in the South. In his opinion, racial bloc voting is a reality, and overwhelming white majorities prevent minorities from electing their preferred candidates, which he implies is a "right" (Parker 1995).

But why did the Supreme Court declare the 1st and 12th districts race-based and unconstitutional? The answer lies within its second argument, the concept of "aesthetic" districting, the creation of compact, tidy voting blocs. The Court holds that communities of voters exist, that geographically close voters share many interests and concerns and thus belong together on election day. Further, a compact district -- one shaped rough like a square or circle -- is arbitrary and formed only by a head count of residents. The two districts in question, their irregular shapes and strings of distant communities, do not fit this mold.

The Court concluded that district reapportionment is an arena in which appearances do matter and that the 1st and 12th districts could not be understood as anything but a racial separation of voters.

In district court, North Carolina justified its plan as voluntary compliance with the Voting Rights Act. The authors of the district plan claimed they only tried to appease the Justice Department, which had rejected a plan with only one majority-black district (Parker 1995). In his dissenting opinion, Justice Byron White said the state’s position was simple. "The state has made no mystery of its intent, which was to respond to the Attorney General’s objections .…" (Shaw v. Reno 1993).

The Supreme Court did not rule specifically on the North Carolina plan but only on the racial gerrymandering issue, so North Carolina was implicitly ordered to comply with both the Voting Rights Act and the Supreme Court’s decision. The Court left no guidelines for the state to follow, no definition of compact districting, and no objective way to measure racial neutrality. Instead, the district court was left with "I-know-it-when-I-see-it" discretion, which is vague and subjective at best and does not lend itself to consistency (Parker 1995).

The haziness would come to haunt the state as it tried to redraw the line between proportional voting and racial fairness. The case returned to the North Carolina for another round of political fire and another rehash of haggard district lines.

 

A Solution of Sorts
 

In August 1994, the case returned to North Carolina federal district court. The district court had to rule specifically on the state's plan, either upholding it or requiring legislators to redraw district lines a second time. The district court affirmed the state’s reasoning behind the districts’ creation -- to comply with the Voting Rights Act. The court found it necessary that North Carolina retain these districts to allow minorities the chance to be elected to the U.S. House. The decision was made, and all was calm for two years.

The Supreme Court struck again in June 1996, declaring the districting plan unconstitutional. Its argument was familiar, that the plan was race-based and physically irrational (Gruenwald 1996). So in January 1997, state legislators moved to redraw district lines. Like the two previous plans, the new plan had to be submitted to the Justice Department for preclearance before it could be implemented.

The plan was finalized in March. The 12th District still lurched from Charlotte to Greensboro, but the black percentage of its population would drop from 57 percent to 46 percent. The black percentage would drop in the 1st District from 57 to 50 percent (Elving 1997). This, legislators hoped, would be enough to erase the "race-based" label the Supreme Court had stamped on the state’s voting districts.

The Justice Department and the federal district court approved the new plan, which again raised more issues, both racial and constitutional. The new districts’ effects on black candidates and incumbents were paramount. Minority activists were concerned the smaller majorities might run black incumbents like Watt and Clayton out of office, or worse, might prevent future minority candidates from reaching office.

Both questions remain unanswered today, but with the May 5 primaries on the horizon, the effects of the diluted black majorities might be recognized. The Shaw case faded into the shadows after the new plan zoned the appellants out of the 12th District, sapping their motivation for further action. Democrats and minority advocates were concerned, but seemed willing to give the plan a chance, and the N.C. Republican Party loosened its grip on the issue. Both sides of the debate seemed relatively satisfied with the revision, but it wasn’t over.

 
The Court Strikes Again
 

A three-judge federal panel ruled April 3 that the 12th Congressional District was unconstitutional because its design was race-based. The panel postponed the district’s May 5 primary election and ordered the General Assembly to present a schedule by April 8 for redrawing Watt’s district.

N.C. Attorney General Mike Easley asked the panel for an extension on the deadline, saying there wasn’t enough time to schedule the changes with the partisan friction in Raleigh. TheRepublican-controlled House and Democrat-controlled Senate would be hard pressed to agree on a controversial issue under such short notice. Easley also asked the panel to outline its decision and expand on its objections to the district. Without an outline, the state could not gauge how much change was needed in the 12th District, he argued.

As the deadline approached, the panel agreed to give the General Assembly until April 17 to present its schedule. It also promised to release a detailed list of objections the week before the deadline, giving the pundits in Raleigh a rough idea how much must be changed.

But the primaries still hang in the balance as the state’s election schedule tries to cope with the change. The 12th District primary is delayed, but since the redrawing will affect the other 11 districts, all primaries could be delayed for months. Easley petitioned U.S. Chief Justice William Rehnquist to stay the panel’s decision to delay the primaries, hoping to avoid a political mess that would press primaries against the November elections. The Court has yet to rule on this, but a decision is expected in April.

 

An Open Ending
 

The present state of the issue is a familiar one. Everyone is waiting. Watt is waiting to see how his district will change and whether it will endanger his incumbency. Twelfth District voters are waiting to see if they’re drawn into another district, and the General Assembly is waiting for word from the Supreme Court, hoping to avoid delaying primaries. All North Carolinians have something at stake; all should be concerned where they go to cast their next votes.

As it stands, legislators again are working feverishly to please the court and put the issue to rest. North Carolina must overcome partisan squabbling in the General Assembly to lay out a comprehensive revision for the 12th District or face letting the district court panel redraw the lines to its tastes. Minority advocates will no doubt be unhappy with the coming results, and others will not be happy enough. Then, like clockwork, opponents will line up for the next round of political war games. The battle rages on.

 

WORKS CITED

 

Elving, Ronald. "Court ban on race-based maps keeps district lines in flux." Congressional
Quarterly Weekly Report 29 March 1997: 752-3.

Gruenwald, Juliana. "Minority districts’ fate uncertain following Supreme Court ruling."
Congressional Quarterly Weekly Report 15 June 1996: 1705.

O’Rourke Timothy. "Shaw v. Reno and the Hunt for Double Cross-Overs." Political Science
and Politics March 1995: 36-39.

Parker, Frank. "Shaw v. Reno: a constitutional setback for minority representation." Political
Science and Politics March 1995: 47-8.

Pinderhughes, Dianne. "The Voting Rights Act -- whither history?" Political Science and
Politics March 1995: 55-6.

 Shaw v. Reno. United States Supreme Court. 28 June 1998.

Statistical Abstract of the United States 1996. 16th ed. Washington: U.S. Government Printing
Office, 1996.

Statistical Abstract of the United States 1993. 13th ed. Washington: U.S. Government Printing
Office, 1993.

Thornburg v. Gingles. United States Supreme Court. 30 June 1986.