The Supreme Court ended its term yesterday with a 5-4 decision that, though close, was probably inevitable and will surely cause significant political change. The court said it is unconstitutional to use race as the dominant factor in drawing congressional district lines, except when the state has a compelling interest in an outcome that can only be achieved that way. That is a situation this court believes is rare to nonexistent.
It was the insistence by the U.S. Justice Department that race must indeed be the dominant factor and that under the Voting Rights Act states had an obligation to "maximize majority-minority districts," as states did in the past decade. Now many observers believe most of those districts are in danger. Wade Henderson, legal director of the National Association for the Advancement of Colored People, called the decision "the first step in the resegregation of American electoral democracy. If race can't be a factor, it's going to be almost impossible to preserve these black districts," Henderson said.
That's too pessimistic. Many black districts are preservable -- Maryland's two, for example. Race can still be a factor in them and in others. Justice Anthony Kennedy said for the court, "The courts, in assessing the sufficiency of a challenge to a districting plan, must be sensitive to the complex interplay of forces that enter a legislature's redistricting calculus. Redistricting legislatures will, for example, almost always be aware of racial demographics; but it does not follow that race predominates in the redistricting process."
We say this decision was probably inevitable, for as Justice Kennedy painstakingly shows, the Supreme Court warned states against using race as a classification in decisions involving jobs, education, housing, public facilities, voting and districting in decisions two, five, 15, 30 and even 40 years ago.
Constitutional or not, racial classification as a basis for government action in the political arena is not a good idea. We've never been comfortable with it, even in remedial situations where we thought there might be a legal, constitutional justification. Though this decision appears to mean some majority minority districts will vanish, it does not mean the Voting Rights Act and its core goals are dead.
As Justice Kennedy said: "The Voting Rights Act, and its grant of authority to the federal courts to uncover official efforts to abridge minorities' right to vote, has been of vital importance in eradicating invidious discrimination from the electoral process and enhancing the legitimacy of our political institutions. Only if our political system and our society cleanse themselves of that discrimination will all members of the polity share an equal opportunity to gain public office regardless of race. As a nation we share both the obligation and the aspiration of working toward this end. The end is neither assured nor well served, however, by carving electorates into racial blocs."