Black districts could face new challenges


WASHINGTON -- A host of congressional districts, mainly in the South, that were drawn specifically to be "safe" for black candidates appeared to be plunged into new constitutional difficulty during a Supreme Court hearing yesterday.

Several justices who had cast key votes for a 1993 ruling that questioned the constitutionality of black-dominated districts shaped mainly by racial factors appear to have hardened their views since then.

The implication of questions asked by those justices was that the court could be on the verge of expanding its 1993 decision to raise the constitutional barrier that legislatures must clear to give blacks new districts they can control politically.

Justice Sandra Day O'Connor, author of the ruling two years ago, showed sympathy for a theory that a district that was drawn primarily for racial reasons might be constitutionally suspect -- even if the district was not drawn in a bizarre shape to gather up black voters.

The 1993 ruling had said that if a black district is so oddly shaped that it could have been the result only of a "racial gerrymander," it probably would be unconstitutional. But Justice O'Connor and the others who joined in her 1993 opinion questioned whether a bizarre shape was the only basis for striking down a district created by a legislature motivated mainly by racial considerations.

U.S. Solicitor General Drew S. Days III, defending the creation of black-controlled districts in states that had previously sent no blacks in Congress, urged the court not to expand its 1993 decision. He argued that districts drawn to give blacks a chance of winning should face a broad constitutional challenge only if they were bizarre in shape.

Justice Anthony M. Kennedy said that approach involved only "a visual test."

"That doesn't make sense to me," the justice said, suggesting that it might be unconstitutional to draw a district when the main justification for its creation was race. Justice Kennedy was in the majority in the 1993 decision.

The court was examining two cases testing black-dominated districts in Louisiana and Georgia. Both districts, now occupied by black members of Congress, were designed to satisfy Justice Department demands that the two states make it possible to elect more blacks to Congress.

The solicitor general faced withering questions from the justices over whether the Justice Department had a policy of forcing more black districts on states than their legislatures wanted, to "maximize" such districts.

Mr. Days insisted that no such policy existed.

But the Justice Department tried to establish a third black district in Georgia when the legislature wanted only two, and those efforts drew skeptical remarks even from two justices who seem generally sympathetic toward black districts: David H. Souter and Ruth Bader Ginsburg.

Justice Souter dissented in the 1993 ruling, and his comments yesterday suggested that, if the court expanded that ruling too far, it could undercut the enforcement of the Voting Rights Act.

Justice Ginsburg was not on the court at the time of the earlier ruling. Neither was the newest justice, Stephen G. Breyer, who expressed uncertainty about limiting state authority to fashion new districts that blacks could win.

All nine justices took an active part in the hearing. Even Justice Clarence Thomas, who seldom asks questions, took part in quizzing the lawyer challenging the Georgia district. Justice Thomas wrote a ruling last year denouncing the use of race to fashion remedies for violations of blacks' voting rights.

Justice Thomas was in the majority in the 1993 decision, as were Chief Justice William H. Rehnquist and Justice Antonin Scalia, who displayed deep skepticism yesterday about race-based redistricting.

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