High Court Revives Democrats’ Redistricting Plan; Justices Mull

June 27, 2003

BYLINE: Jonathan Ringel

Ruling in its second major race relations matter of the week, a split U.S. Supreme Court on Thursday breathed new life into a Georgia Senate map that a lower court had struck down as violating the 1965 Voting Rights Act.

Writing for the 5-4 majority, Justice Sandra Day O’Connor said the lower court should take another look at Georgia’s map under a revised framework, one that allows states to redraw their legislative districts even if the result was the election of fewer minority lawmakers. But, O’Connor added, such maps would have to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters.

The decision was a major victory for Georgia Democrats, who could regain control of the Senate if the lower court follows O’Connor’s strong suggestion that the map they drew in 2001 did not violate the Voting Rights Act.

Georgia Attorney General Thurbert E. Baker, a Democrat, said that, as a result of the high court decision, State and local lawyers will have clear guidance on what the [voting rights] law requires.

Baker has fought Gov. George E. Sonny Perdue III over who has the authority to decide the state’s position in the case. Perdue, a Republican who was highly critical of the Democrats’ redistricting plan, claimed he had the power to order Baker to drop the state’s case at the U.S. high court.

Perdue’s claim on the power question is pending at the Georgia Supreme Court, but, on Thursday, Baker announced he was asking the state justices to declare the case moot.

Robert Highsmith, Perdue’s deputy executive counsel, said, We disagree strongly that the U.S. court’s decision mooted the important state law issues at stake in the state high court.

Gov. Perdue Criticizes Ruling

On the U.S. Supreme Court decision, Perdue issued a statement: We should not be in a position where we are asking if we have gone too far in reducing African-American voting strength … Instead, we should continue to move towards maps that comply with principles of redistricting that keep communities of interest together regardless of race and regardless of party interests.

The case stemmed from the political scene in Georgia just before Perdue won a stunning upset last fall. In 2001, Democrats controlled both houses of the General Assembly and Democrat Roy E. Barnes was governor. Using a strategy employed by Democrats around the South, the Democrats diluted the concentration of black voters in some districts and spread them around the state.

Democrats argued their map improved the lot of black voters even though the black population in three Senate districts at issue dropped from safe majorities to about 50 percent. Only two of the General Assembly’s 46 black lawmakers voted against the map.

Because Georgia is a state that historically discriminated against blacks, the Voting Rights Act’s Section 5 requires the state to get permission from federal authorities for any change in voting procedure, including redistricting.

Retrogression Was Key Issue

The U.S. Justice Department and black voters supported by the Georgia Republican Party claimed the map violated Section 5, which the U.S. high court has said does not allow retrogression, or the dilution of black voting strength. Reflecting the strange alignment of voting rights cases, the American Civil Liberties Union and the NAACP Legal Defense and Education Fund Inc. backed the Justice Department, along with Georgia Republicans.

Last year, a three-judge federal court in Washington, in a 2-1 decision, agreed with the Justice Department. The controlling decision said the Voting Rights Act did not allow states to dilute black voting power so that a district with a robust chance of electing a black official would then only have a reasonable or fair chance.

But on Thursday the Supreme Court majority-O’Connor, Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas-ruled that the lower court viewed the case too narrowly.

Rather than focusing on the effect on black voting in particular districts, O’Connor wrote, the court should view the new map’s effect on the state’s blacks as a whole.

Thus, a court must examine whether a new plan adds or subtracts influence districts,’-where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process, O’Connor wrote.

Justice David H. Souter-joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer-wrote in a dissent that the majority ruling redefines effective voting power in [Section] 5 analysis without the anchoring reference to electing a candidate of choice.

The power to elect a candidate of choice has been forgotten; voting power has been forgotten, wrote Souter, who complained later that Section 5 will simply drop out as a safeguard against the discrimination that required the passage of the Voting Rights Act in 1965.

O’Connor Was Swing Vote

The case also reconfirmed O’Connor’s role as the Court’s swing vote in race relations matters.

On Monday, along with the liberal wing of Souter, Stevens, Ginsburg and Breyer, O’Connor wrote the opinion that saved affirmative action in admissions at public universities. She expressed a hope that 25 years from now, affirmative action would no longer be necessary.

Joined this time by the Court’s conservatives, O’Connor sounded a similar theme at the end of her opinion in Thursday’s case, Georgia v. Ashcroft, No. 02-182. She wrote that the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters: a society where integration and color-blindness are not just qualities to be proud of, but are simple facts of life.

Laughlin McDonald, a leading voting rights lawyer of the ACLU, took issue with O’Connor.

We don’t live in that kind of society, said McDonald, arguing that blacks are stuck in the middle between Republicans, who pack their votes in few districts, and Democrats, who spread them around.

Anne Lewis, who represented the black voters, echoed McDonald’s point on O’Connor’s hopes: I don’t think we’re there yet.

Lewis, of Atlanta’s Strickland Brockington Lewis, expressed hope that the Democrats’ redistricting plan would still be blocked by the three-judge federal court, or, in a separate case, by an Atlanta federal court looking at a challenge she’s brought on behalf of Republicans.

Lewis was gratified that the Court did accept her argument that the black voters had a right to intervene in the case in the first place.

State Senate President Pro Tempore Eric Johnson, the Senate’s leading Republican, issued a statement that, like Lewis, found solace in the victory for the rights of the intervenors.

He added, I am deeply saddened that the Supreme Court seems to be willing to allow the dilution of minority voting rights for the sole purpose of allowing the Democratic Party to maintain power.

State Sen. David Adelman, D-Atlanta, was pleased with the ruling and defended the Democrats’ plan, echoing O’Connor’s points that the Senate map helps voting African-Americans have more influence in the Georgia General Assembly.

A Justice Department spokesman said the decision was complex and that lawyers there were analyzing it to determine its effect.

The case was argued in Washington in April. David F. Walbert of Parks, Chesin & Walbert argued for the state of Georgia. Malcolm L. Stewart, assistant to the U.S. Solicitor General, argued for the federal government. E. Mark Braden of the Washington office of Baker & Hostetler, represented the black intervenors.

Reporter Rachel Tobin Ramos contributed to this story.

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