The Voting Rights Act of 1965 was forged amid the harsh reality of overt racial prejudice and how it skewed the voting process in the mid-20th century. But today election law operates in an atmosphere of fantasy and pretense with regard to race.
Recently the Supreme Court struck down a key element of the Voting Rights Act based on the notion fantastical to most minorities that the nation has moved largely beyond racial bias. On Monday, a three-judge panel in North Carolina declared that the politically warped district lines drawn by the General Assemblys Republican majority a majority that includes no black members do not impair the constitutional rights of the citizens of North Carolina as those rights are defined by law.
The Superior Court panel of two white men and one black woman was unanimous in its opinion. We wish the judges had taken a more generous view of the plaintiffs contentions, but vague elements of the law and previous rulings left them room to rule otherwise. Ultimately, however, the problem is not the ruling; its the redistricting process.
Power to draw districts
In the 2010 election, the Republican Party made a major push to win majorities in both chambers of the General Assembly for the first time in more than a century. The motivation was that the party in control in 2011 would redraw congressional and legislative district lines based on the 2010 Census.
Once in power, the Republicans brought in redistricting experts to help them redraw the lines for maximum political benefit, but without violating the Voting Rights Act.
Their tactic was not to stymie the prospects of minority candidates, but to enhance them. They increased the percentage of minority voters in reliably Democratic districts and lowered the minority percentage in some swing districts.
The results had an Alice-in-Wonderland aspect. The first vote under the new map in 2012 produced a record number of black members of the General Assembly while also increasing the Republicans legislative majority. Meanwhile, on the congressional level, North Carolinas delegation flipped from seven Democrats and six Republicans to nine Republicans and four Democrats.
The results suggest effective gerrymandering, but not necessarily racial gerrymandering. Indeed, the U.S. Justice Department precleared the maps as in compliance with the Voting Rights Act, and now the three-judge panel has found that even the most suspect districts cited by the plaintiffs are allowable under the state and U.S. constitutions.
So here we have a major victory for Republicans both in court and on the political landscape. But we also have a major loss for democracy.
Political lines OK
Theres a saying that voters should chose their politicians rather than have politicians choose their voters. But that is not what the law says. As the panel said in its opinion Monday, redistricting with an eye toward political advantage is historically part of the process:
Redistricting in North Carolina is an inherently political and intensely partisan process that results in political winners and, of course, political losers. The political party controlling the General Assembly hopes, through redistricting legislation, to apportion the citizens of North Carolina in a manner that will secure the prevailing partys political gain for at least another decade.
It may be tradition. It may be legal. But its not a fair way to ensure that the voices of the voters whether white, black, Hispanic or other races are heard.
The Republicans, while in the minority, argued as much. Some still do. A bill proposing that district maps be drawn by nonpartisan legislative staff members and then approved by lawmakers passed the state House in 2011. This year, House Bill 606 proposes the same. Thirteen other states have adopted similar nonpartisan ways to draw districts.
Flush with victory and its spoils, Republicans are unlikely to surrender the power to draw districts. Indeed, theyve taken to gerrymandering with special enthusiasm. Democrats drew lines to their advantage, but there was enough give in the maps to allow Republicans parity in the congressional delegation and to let the GOP sweep into the legislative majority.
If the party in power cant be expected not to abuse redistricting, the courts must take a fresh look at voting rights law in light of tactics that use the letter of the law to abuse its intent. The plaintiffs should appeal to the state Supreme Court and, if necessary, to the U.S. Supreme Court.