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Court seems blind to different kinds of race-consciousness

Published Oct. 4, 2005

The Supreme Court has demonstrated once again that it has trouble telling cancer from cure. As a result, it may have paved the way for the virtual decimation of black representation in the Congress.

The issue this time was Georgia's map _ clearly drawn so as to produce three black-majority districts in a state that previously had had only one.

Five white residents of the new 11th Congressional District (whose ungainly shape links black populations in the center of the state with other black concentrations in a narrow band along the Georgia border with South Carolina) objected that the new map amounted to racial "gerrymandering' and harmed them as white voters.

By a 5-to-4 vote, the court agreed.

The opinion, written by Justice Anthony Kennedy, makes some interesting points, including the inappropriateness of the federal government's requiring the state to maximize black electoral chances. (Under terms of the Voting Rights Act, Georgia was among the states required to "pre-clear" with the Justice Department any changes in its voting laws; Justice earlier had rejected a proposal that would have produced only two black-majority districts.)

But the more interesting _ and, for me, most troubling _ aspect of Thursday's ruling is the court majority's refusal to distinguish between race-consciousness driven by the desire of a white majority to maintain exclusive control and race-consciousness for the purpose of sharing control with previously excluded minorities. It is, as I said, a refusal to distinguish between cancer and cure.

It is like saying that while it's wrong to draw school boundaries in such a way as to create racial segregation, it is also wrong to redraw the boundaries in such a way as to promote integration. It is like saying that there is no moral (or constitutional) distinction between Jim Crow laws and rules designed to overcome the effects of Jim Crow.

Justice John Paul Stevens, in his dissent, made the case precisely. The court, he said, "misapplied the term "gerrymander,' previously used to describe grotesque line-drawing by a dominant group to maintain or enhance its political power at a minority's expense, to condemn efforts of a majority (whites) to share its power with a minority (African-Americans)."

Stevens would have dismissed the case on the ground that the whites who brought it had suffered no legal injury. (The court dismissed a similar Louisiana challenge on precisely that ground.) He based his reasoning on the court's own holding in the recent Shaw case in which it first raised the issue of whether the shape of a congressional district may be unconstitutionally "bizarre."

This week's majority opinion expands on Shaw. "When the state assigns voters on the basis of race," Kennedy wrote, "it engages in the offensive and demeaning assumption that voters of a particular race, because of their race, "think alike, share the same political interests, and will prefer the same candidates at the polls.' "

Why, Stevens wondered, isn't it "offensive and demeaning" to assume that the white plaintiffs in the Georgia case will, because of their race, have different political interests from their black neighbors? And if you don't assume such race-based interests, what harm have the plaintiffs suffered?

The logic is impeccable, and it points to the trouble the court (and much of the rest of America) has been having reconciling the desire for a society in which race is relatively unimportant with the fact that race still matters a great deal in America.

What, if not race, explains why Georgia _ some 28 percent black _ went from post-Reconstruction until the 1986 election of John Lewis without sending a black representative to Washington? Or why the recent spurt in the membership of the Congressional Black Caucus coincides with a new degree of race-consciousness in drawing congressional districts?

I don't argue that districts ought always be drawn in ways that would maximize the number of blacks sent to Congress. It might make more sense, sometime and in some places, to draw them in a way that maximizes the number of districts in which blacks have major influence, even while sending fewer of their ranks to Congress. But that's a political question, not the business of the court.

But the justices do have an interest in setting things right, and I wish they'd learn to distinguish between the cancer and the cure.

Washington Post Writers Group