The five Supreme Court justices who made George Bush the president have now done a political favor for the Democrats. Their ruling in the Georgia redistricting case will allow legislatures to start "unpacking" many heavily black voting districts whose creation resulted, incongruously but predictably, in electing more conservative white Republicans.
Florida is a vivid example of that cause and effect. The redistricting that the courts and the Justice Department imposed on a reluctant Democratic legislature in 1992 helped the Republicans to take over the Capitol years sooner than they might have.
With their own hands on the redistricting computer keyboards 10 years later, the Republicans concentrated the Democrats to the point of marginalizing them. Despite having only 38 percent of the statewide registration (to 42 percent for the Democrats) the Republicans now hold 65 percent of the Senate and nearly 68 percent of the House. In Georgia, however, the Democrats still held the House and Senate in 2001 and used their majorities, during the last post-census redistricting, to distribute dependably Democratic black voters over a greater number of districts.
There might not be so many black legislators in the long run, but there would not be more Republicans. All but two of the 45 black legislators supported this _ as did U.S. Rep. John Lewis of Atlanta, a legendary civil rights leader _ on the ground that black influence would be greater within a Democratic legislature. Overruling a district court, the Supreme Court held 5-4 that this did not violate a ban on "retrogression" that applies to states under Section 5, the preclearance section, of the Voting Rights Act.
"The state may choose," wrote Justice Sandra Day O'Connor, ". . . that it is better to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters."
For Florida Democrats, however, this interpretation comes 11 years too late. It doesn't require legislatures to unpack; it simply allows them to do it if they want to. Florida's Republican leaders will not want to.
Georgia vs. Ashcroft is significant only in the 16 states where Democrats still control both houses, though it may have some influence on future redistrictings in the 11 where control is divided. Moreover, the entire Voting Rights Act expires in 2007 with no certainty that Congress will renew it. So it could be said that if the five justices finally did a favor for Democrats, it came too late.
However, the dissenters _ Justices Souter, Stevens, Ginsburg and Breyer _ saw a lasting peril to minority rights.
"The court holds," Souter's dissent complained, "that there would be no retrogression when the power of a voting majority of minority voters is eliminated, so long as elected politicians can be expected to give some consideration to minority interests.
"The power to elect a candidate of choice has been forgotten; voting power has been forgotten . . . "
Lani Guinier, the Harvard law professor who was briefly Bill Clinton's choice to head the Civil Rights Division, was equally troubled by the implications of O'Connor's decision _ and of the outcome in the Michigan law school affirmative action case, which was O'Connor's also. She found both to be condescending.
". . . The court makes clear," Guinier wrote in the Village Voice, "that racial diversity is an interest best managed by elites. Those already privileged handpick who is best qualified to join them. Of course it is a good thing when the select few are motivated by considerations of inclusion, and knowledgeable experts often make fine decisions. But undue deference to local elites at Michigan's law school and in Georgia's state legislature creates the dangerous moral hazard that those already privileged may seek only to reproduce themselves."
In so saying, Guinier touched on one of the two great scandals that subvert the American democracy. (Money in politics is the other.) Whether it's the Republicans or Democrats in power, legislators inevitably apply redistricting to their own selfish ends.
"The reapportionment process _ if objectively implemented _ should result in a fair plan by which voters may select their legislators, rather than legislators selecting their voters," wrote Paul F. Hancock, a deputy Florida attorney general, in a brief criticizing the Legislature's self-selecting plan last year. The Florida Supreme Court was deaf to it. As a result nearly half the voters had no competing choices for the state Senate and nearly half were effectively disenfranchised in the House.
The U.S. Supreme Court's Georgia decision does nothing to curb political gerrymandering. If anything, it encourages it. But the court also agreed to face the gerrymandering question next term in the form of a Democratic challenge to Pennsylvania's redistricting. As Hancock puts it, "Whatever they do in this case is really going to be the future of the country."