Justices examine policy based on race in closely watched case; Dispute from Hawaii tests how strict Supreme Court conservatives will be


WASHINGTON -- One hundred and twenty-nine years after the 15th Amendment to the Constitution gave freed slaves and other blacks the right to vote, the Supreme Court pondered yesterday what that amendment means now.

An unusual dispute that arose in Hawaii is the only case in the court's current term to test the conservative majority's deepening opposition to government's use of race as a decisive factor in public policy.

The case is being watched closely for new hints about the court's views on racial preferences. The coming decision, according to Mari Matsuda, a law professor at Georgetown University, "could radically change the law" on state power to devise remedies for historic wrongs done to minorities.

Yesterday's court hearing suggested that the Hawaii law at issue may be doomed. It decrees that only citizens of the state with Hawaiian ancestry may vote for state officials who distribute millions of dollars in public benefits from a land trust to benefit people of that ancestry -- thus excluding whites and others of different heritage.

The trust was set up to benefit Hawaiians who can trace their ancestors on the island back to 1778, because the U.S. government had played a key role in overthrowing their kingdom. That action resulted in widespread poverty for native-born Hawaiians. Much of the revenue earned on land held in trust by Hawaii has been used since 1978 solely to assist native-born residents.

Only those with Hawaiian blood are allowed to vote for the members of the board that allocates that money.

A white Hawaiian, Harold F. Rice, who traces his own Caucasian ancestors on the islands back to 1831, sued because he was not allowed to vote for board members in 1996.

"He has the wrong ancestors," his lawyer, Theodore B. Olson of Washington, told the justices. Olson's argument appeared to find a sympathetic audience among most of the justices, with only lukewarm support for the Hawaii law from a few of the more liberal justices.

The one question that loomed was how far the court might go to expand the conservative justices' commitment to constitutional color-blindness.

Some legal observers have voiced concern that a ruling against the Hawaii law could threaten special benefits that the U.S. government provides for American Indians. But most of the justices seemed persuaded that Indians can be treated differently, because their status is guaranteed by the Constitution itself.

Near the end of yesterday's hearing, Justice Ruth Bader Ginsburg, who seemed sympathetic toward advocates of the Hawaii law, expressed worry about the impact of nullifying that statute.

"How many federal statutes would be affected?" she asked. "Is everything up for grabs" in minority-preference laws?

Olson, the attorney for Rice, replied: "It is impossible to answer. Every one of the statutes providing race preferences is different."

He suggested that the court could confine its ruling to the Hawaii land trust voting law, deeming it a form of "ballot-box race discrimination -- plain and simple."

The case is a clear example of a violation of the 15th Amendment, Olson argued, adding, "The court has said there are no exceptions to the 15th Amendment."

That amendment was added to the Constitution in 1870 to eliminate race as a qualification for voting.

Maryland is one of a handful of states that rejected it; the state legislature in 1870 passed a resolution saying "this General Assembly refuses to ratify the same." Maryland's rejection did not block ratification, so the amendment is binding everywhere in the nation.

John G. Roberts Jr., a Washington lawyer who defended the Hawaii law on behalf of the state, appeared to have little success with his main argument to the justices: that the law is not a race-based statute but rather a recognition of the special status of native Hawaiians -- much like the special status of American Indians.

The idea, Roberts said, is "to promote self-sufficiency" -- the same goal that the government often pursues with its Native Americans' policies.

Justice Sandra Day O'Connor countered that when Congress admitted Hawaii to statehood and gave it permission to administer the public lands to benefit the island natives, it "didn't say you're exempt from the 15th Amendment."

Pub Date: 10/07/99

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