Race-driven redistricting gets hearing in high court Justices face reality of recent rulings

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court came face to face yesterday with the reality that its strong rulings against racial gerrymandering are putting in jeopardy most black-dominated election districts in Congress, state legislatures and local governing bodies.

At a lengthy hearing on cases from North Carolina and Texas, several justices appeared to recognize that the court may have to scale back its recent decisions if it wants to avoid putting a complete halt to the use of race as a redistricting factor.

Those decisions have set off political turmoil in state and local legislatures, as they try to satisfy the Supreme Court while trying to do something to give black voters more political strength to offset past discrimination.

Yesterday, the court took up constitutional disputes -- sequels to two earlier rulings -- involving two black-dominated congressional districts in North Carolina and three districts in Texas, two black and one Hispanic.

In widely differing views of what the Supreme Court now requires, one federal court upheld the North Carolina districts, while a different one struck down the Texas districts.

At one point during the hearing, Justice Sandra Day O'Connor, the principal voice in the court's stern denunciation of race-driven redistricting over the past two years, seemed unsettled when one lawyer denounced all use of race in drawing new election boundaries.

Robinson O. Everett, a Durham, N.C., lawyer challenging two congressional districts drawn to assure that blacks could get elected from that state, interpreted the court's rulings to mean that race had been ruled out in shaping districts.

Although nine lawyers took part in the hearing, Mr. Everett appeared to stir the strongest reaction on the bench, going beyond what the others did to give the most sweeping reading to the court's anti-gerrymandering decisions.

Justice John Paul Stevens questioned the Durham lawyer on whether he was arguing that, once race had been shown to be a redistricting factor, that was "the end of the ballgame" and the plan would fail. Mr. Everett seemed to agree, commenting: "Race is impermissible."

Justice O'Connor then asked: "Do you take the position [that if the court's stringent constitutional standards are applied], it's fatal? That nothing survives?" When the lawyer began his reply by seeming to agree, the justice cut him off.

"I thought we had indicated that it is possible" for a redistricting plan partly based on race "to survive strict scrutiny" in court, Justice O'Connor commented.

Mr. Everett replied that would not be so, when the court's decisions are brought down from the theoretical level to the practical level.

Justice Anthony M. Kennedy, another of the court's moderate members who, with Justice O'Connor, appears to hold a swing vote on racial gerrymandering cases, asked Mr. Everett: "Do you have to take that position [in order to win]?"

Mr. Everett said he did not, that the North Carolina plan could not survive even if it were tested by a less rigorous constitutional measure.

Throughout the hearing, four of the court's more liberal members used a barrage of questions to illustrate the constitutional risk they felt the court had posed to racial factors in redistricting. Many of those comments seemed directed at Justices O'Connor and Kennedy.

The court has been split 5-4 on this issue, with Justices O'Connor and Kennedy making the majority with three more conservative colleagues: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Chief Justice Rehnquist and Justice Scalia were far more critical of race-based districting than either Justices O'Connor or Kennedy yesterday. Justice Thomas said nothing during the hearing.

One justice, David H. Souter, appeared to be lobbying Justices O'Connor and Kennedy during the hearing by pointedly giving a narrow interpretation of opinions each of them had written in June when the court last ruled on racial gerrymandering.

He, and then Justice Ruth Bader Ginsburg, used that approach to get a lawyer challenging the Texas plan as a racial gerrymandering to concede that the court's past rulings in fact would allow significant reliance on race -- a point that Justice O'Connor sharply disputed.

Other justices seeking to define the threat they see to black-dominated districts were Justice Stephens and Justice Stephen G. Breyer.

Justice Breyer several times speculated that "hundreds of thousands" of redistricting plans at all levels of government might now be in trouble in the federal courts because racial factors had played a role in their drafting.

One Maryland local governing body -- the Worcester County board of commissioners -- is awaiting the outcome of the cases heard yesterday to learn the fate of a new black-dominated commissioner district. The justices are holding the Worcester case until they issue a new ruling on the subject in the North Carolina and Texas disputes.

Maryland's congressional districting includes a recently created black-dominated district in the Washington suburbs. Although the court upheld that plan in 1992, without even holding a hearing, that was before it began cracking down on racial gerrymandering. The Maryland district, now represented by Democrat Albert R. Wynn, might be in jeopardy if a way could be found to start a new court test.

Besides race, another factor in the Maryland congressional redistricting was a desire to protect the seat of incumbent Democratic Rep. Steny H. Hoyer.

At yesterday's Supreme Court hearing on the Texas case, in particular, it became clear that some justices are disturbed about efforts to protect incumbents when they can be assured of a safe district only by assigning voters by race to their district or to someone else's.

The court is expected to decide the two cases by next summer.

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