The U.S. Supreme Court issued a complex series of six opinions this week in LULAC vs. Perry, which concerned the legality of Texas' political map following the famous mid-decade redistricting plan pushed by former congressman Tom DeLay. On the question of partisan gerrymandering, the Court essentially chose to maintain the status quo, thus handing Texas Republicans a victory and the beleaguered Hammer some small vindication. But much more significant change may be reflected in the Court's opinions related to the Voting Rights Act. The decision signifies changing views about the way race should be used in drawing political districts, with important implications for minority voters across the country.
The good news is that the justices signaled that they believe the Voting Rights Act -- the landmark civil rights legislation created 40 years ago to overcome a legacy of poll taxes, literacy tests and whites-only primaries -- is still needed to protect minority voting strength. But a 5-4 opinion written by Justice Anthony Kennedy -- confirming his role as swing voter on this issue as on so many others -- heralds a new standard for the law: It's not enough for minority voters to share the same skin color and an ability to elect candidates of their choice (by comprising a majority of the voting population in a district); they must also share other common demographics, like socio-economic status, that lead them to have coherent interests in order to warrant protection under the Voting Rights Act.
This language came in an opinion finding that one southwest Texas district did, in fact, violate the Act by diluting Hispanic influence. Prior to 2002, a growing Hispanic population had organized and was poised to topple the Republican incumbent congressman, Henry Bonilla, in Texas's 23rd district. The district contained more than 60 percent Latino residents, but Bonilla struggled to keep his seat as his Latino support declined from a high of 30 percent in 1996 to 8 percent in 2002.
New political boundaries, drawn by Bonilla's Republican colleagues in 2002, took 100,000 Latino voters out of the district, replacing them mostly with white Republicans from conservative San Antonio. Exactly 50.9 percent of the voting age population living in Bonilla's new district is Hispanic, while the majority of actual registered voters are white Republicans. Voting rights activists and lawyers argued that by redrawing the district, lawmakers essentially discriminated against and punished Latino voters for not supporting Bonilla. (The congressman is himself Hispanic; his example illustrates that at issue in such cases is not the ethnicity of the representative but the influence of the minority voting population.)
The court agreed that Latino voting strength in the district had been weakened and that a newly drawn 25th district with a Hispanic majority (which Texas Republicans devised in an effort to avoid a Voting Rights Act challenge) was not compensatory. But the reasoning applied to the latter question was significant. Because the 25th district joined together two Hispanic communities that differed significantly in geography and socio-economic status, the Court did not consider it a majority-minority district that adequately compensated for the Hispanic dilution in the 23rd. Writing for the majority, Kennedy demonstrated the court's increasing discomfort with the essentialized way that race has traditionally been used under the Voting Rights Act. We do a disservice to these important goals [of the Voting Rights Act] by failing to account for the differences between people of the same race, he wrote in his opinion. Legitimate yet differing communities of interest should not be disregarded in the interest of race.
This marks a sharp departure from how the court previously viewed race and politics, according to Rick Pildes, a law professor at New York University. It demonstrates the court's increasing skepticism about grouping voters together based on race and ethnicity, he said.
Although the court's decision does not directly address constitutional questions about the Voting Rights Act, the decision could spell trouble ahead for the legislation's renewal because it demonstrates that justices are increasingly uncomfortable with the way race is used to meet the law's goals.
The Voting Rights Act has always been based in part on the sober premise that white Americans do not vote for non-white candidates. In order to achieve effective representation, minority voters are grouped into majority-minority districts to elect candidates who will represent their interests. Previous interpretations of the Voting Rights Act by the Supreme Court allowed legislators to do this.
This week's newer, stricter interpretation creates a higher threshold for the establishment of such districts. I think they dealt a blow to the minority voting rights community, Pildes said. It will be troubling to voting rights activists because this will unsettle a fundamental pillar of how the Voting Rights Act has been traditionally applied.
Time will tell what impact this change in direction will have. Meanwhile, several provisions of the Voting Rights Act, including one requiring a handful of mostly southern states to get permission from the federal government to make any changes to their elections procedures, are due to expire in 2007 unless Congress votes to renew them before the end of the year. House Republicans have held up a quick renewal and indicated an interest in holding more hearings on the issue.
The renewed Voting Rights Act will likely face legal hurdles no matter what; the legislation's constitutionality has been challenged ever since its inception. The difference now is that it will land before a more conservative Supreme Court, whose chief justice, John Roberts, has long been known for his skepticism about the Act. In this week's decision, Roberts reflected the same grim attitude that he expressed while working in the U.S. Attorney General's Office in the early 1980s, the last time the Voting Rights Act was renewed.
It is a sordid business, this divvying us up by race, Roberts wrote in his latest opinion, dissenting from the majority's ruling that Bonilla's district violated the Voting Rights Act. Joining his dissent: Samuel Alito. The fight over the Voting Rights Act* won't be ending any time soon.
Tracie Powell is a freelance writer and a Kiplinger Fellow at the John Glenn School of Public Affairs.
* This has been corrected from the original.
