Analysis: Settling an issue of race and politics
Two starkly differing views of the contemporary role of race in American politics emerged in full view in the Supreme Court’s wide-ranging new ruling on federal voting rights law. Both views start with the same premise, but end up in markedly different conclusions. Again, the Court is seen to be as deeply divided on the way out of the racial bind as the entire country may still be.
The opinion deals with an issue that has been considered so difficult that the Court has left it open repeatedly, including five times in the past quarter-century. The array of opinons finally resolving the question is further evidence of its complexity, both as a core legal question and as a wider cultural inquiry.
Both the plurality opinion of Justice Anthony M. Kennedy in Bartlett v. Strickland (07-689), and the principal dissent, by Justice David H. Souter, begin with the notion that it would be culturally and legally valuable if the nation could organize its politics with less focus on race. Both sides would like to see the races come together more often in political alliances, thereby reducing race as a dividing line at the polls and possibly even easing racial tension as a whole.
Justice Kennedy, while lamenting that “racial discrimination and racially polarized voting are not ancient history,” welcomes trends in the opposite direction that may be developing. He sees in the 1965 Voting Rights Act’s Section 2 — the provision at issue in Bartlett — as intending to “hasten the waning of racism in American politics.” And he welcomes “the voluntary cooperation our society has achieved.”
Justice Souter notes that “racial polarization has declined,” and writes approvingly of requiring “polarized factions to break out of the mold and form the coalitions that discourage racial divisions.” He credits Section 2, as interpreted judicially, as helping minority populations “elect representatives of their choice,” and potentially even more so, if allowed to break down polarization further.
But then the two main opinions part ways. Examining what Section 2 provides as a remedy, when minorities are in danger of losing significant electoral opportunity, both Kennedy’s and Souter’s legal conclusions and their broader perceptions differ significantly.
The contrast being drawn here is between the two main opinions. Justices Clarence Thomas and Antonin Scalia, while casting votes make a 5-4 majority for the outcome, took an entirely different view of Section 2 — one that would narrow its scope even more than Kennedy’s reasoning would.
The legal question in the case — one supposedly confined to interpreting a statute, not the Constitution — was whether Section 2 requires the creation of an election district in an area of a state where a racial minority makes up a sufficiently large bloc to be able to control elections, if they get some measure of support from white voters.
Kennedy’s conclusion: Only if the minority has 50.01 percent or more of the population in the new district — that is, a numerical majority — does Section 2 make a new district necessary as a remedy for dilution of minority voting patterns in the former districting arrangement. Nothing in that provision, Kennedy said, commands a legislature to create a new district out of less than a majority of voters who are of a racial minority.
The result, for Kennedy, is that Section 2 does not mandate what are called “crossover districts.” When minority voters cannot “dictate electoral outcomes independently,” they have no right under that provision to creation of a district where they will need “assistance from others” in order to prevail. “Nothing in Section 2 grants special protection to a minority group’s right to form political coalitions,” Kennedy’s opinion says.
By contrast, Souter’s conclusion: Even if minority voters in a new district would not have a majority — that is, their numbers fall below 50 percent — Section 2 should require as a remedy for vote dilution a district in which their numbers are large enough to “elect representatives of their choice,” even if to do so they will have to have crossover support from whites.
Souter does not set a fixed figure on how far below 50.01 percent the minority population must be in order to justify a “crossover” district. He does suggest that 25 percent would be too low, while 39 percent — the figure for the particular North Carolina legislative district at issue — would not be too low. For practical purposes, according to Souter, a 39 percent minority district where minorities have the potential to prevail — with crossover support — “is every bit as good as a 50 percent minority district.”
Kennedy comes to the legal conclusion he draws because of a broader concern: Deciding what the minimum figure would be (below 50.01 percent) would force those drawing up districts to pay much closer attention to racial factors. Determining where to draw the line, his opinion says, courts would be placed “in the untenable position of predicting many political variables and tying them to race-based assumptions.”
Kennedy adds: “There is an underlying principle of fundamental importance: We must be most cautious before intrepreting a statute to require courts to make inquiries based on racial classifications and race-based predictions.” To read Section 2 to compel “crossover districts,” keyed so closely to “racial assumptions,” would raise “serious constitutional problems,” as Kennedy views the matter.
This reflects Kennedy’s long-standing concern about using race as a deciding factor in determining public policy in general. His aspiration is to move government steadily away from race-based judgments, partly out of philosophical discomfort with such judgments, and partly out of a belief that society is making advances in racial understanding without being coerced.
For his part, Souter comes to his conclusion also out of a broader concern : If “crossover districts” are not allowed as remedies for vote dilution, then legislatures will simply resort to “packing” — that is, solving the problem of declining minority political clout, legislatures will simply create more districts in which minorities hold a clear majority. They will prevail, of course, but only in isolated districts that do not reflect their potential influence elsewhere in the state, where they could make coalitions with non-minority voters.
By insisting upon a majority of a racial minority in a remedial district, the plurality, according to Souter, “has done all it can to force the states to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.”
For all of the constitutional overtones of the decision, it still is a ruling about the meaning of a federal statute. It is thus up to Congress, if it wishes, to clarify what Section 2 means. (Justice Ruth Bader Ginsburg, in a brief dissenting opinion of her own, suggests just that.)