Gerrymandering: The poison pill

LeRoy Goldman
The Shadow Knows

Published: Sunday, March 17, 2013 at 4:30 a.m.

We all know the House of Representatives doesn't serve the nation well. And we all know that at the heart of the House's dysfunction is ubiquitous gerrymandering. More than 300 of the House's 435 seats are gerrymandered to the point that only one party can win them.

Gerrymandering has become the House's poison pill.

It's a zero-sum game. They win and we lose. North Carolina's a perfect example of gerrymandering gone wild. In Districts 1 and 12, both majority-minority districts, Democrats G.K. Butterfield and Mel Watt, both African-Americans, won last November with 75.3 percent and 79.6 percent of the vote, respectively.

At the same time, Republicans Walter Jones and Howard Coble won in District 3 and District 6 with 63.1 percent and 60.9 percent of the vote, respectively. Compare those blowout victories to the fact that statewide Mitt Romney defeated Barack Obama by only 2 percent! Or how about House Speaker John Boehner winning with 99.2 percent and House Minority Leader Nancy Pelosi winning with 85.1 percent of the vote?

You get the point — contort and distort the district lines and you create congressmen (and women) for life. It's not a House of Representatives. It's a House of Disrepute. But maybe, just maybe, beneficial change is on the wing. But before we look forward, we need to look back.

Gerrymandering is not new. The term was first used in the Boston Gazette in 1812 when then-Gov. Elbridge Gerry of Massachusetts signed a bill into law that drew the lines of state Senate election districts to benefit his Democratic-Republican Party. One of the contorted districts had the shape of a salamander. Thus, "Gerry-Mandering" was born.

Both parties have engaged in this process for 200 years. But there is no doubt that the passage of the landmark Voting Rights Act (VRA) of 1965 and its amendments in the early 1980s took gerrymandering to a whole new and more combustible level. It both permitted and sometimes required the creation of majority-minority congressional districts. In so doing, the shaping of district lines was no longer simply a matter of one party attempting to gain political advantage. Now it was also a matter of race.

Section 2 of the VRA prohibits the drawing of congressional district lines that results in the denial of the right to vote based on race or color. Section 5 of the VRA requires certain covered jurisdictions, in the South and including certain counties in North Carolina, to "preclear" their proposed changes with the federal government.

Under Section 5, the burden of proof is upon the covered jurisdiction to prove to the feds that neither the purpose nor the effect of the proposed voting change will deny the right to vote based on race or color. No matter how you cut it, Section 5 tramples on the constitutional doctrines of federalism and state sovereignty.

Since the enactment of the VRA, the number of majority-minority congressional districts has grown substantially. There are 42 members of the House who are African-American, 28 who are Hispanic and 12 who are Asian. The vast majority of them are Democrats, and most have been elected from majority-minority districts.

However, packing large numbers of such minorities into those districts has created many opportunities for the Republicans to win seats that are no longer competitive for the Democrats because so many minority voters have been packed into the majority-minority districts.

None of us will be surprised to learn that a racially charged matter such as this would inevitably end up in the courts. And it did, beginning in the 1990s, thanks to the efforts of Duke law professor Robinson O. Everett. Everett was not the person one would have expected to have led the charge against the constitutionality of North Carolina's majority-minority districts. He was, after all, a liberal Democrat and was close to and respected by the African-American community in Durham.

But Everett believed that racial gerrymandering was wrong, and, more importantly, he believed it was unconstitutional. His efforts gave rise to what became known as the Shaw-Cromartie cases that the Supreme Court ruled on no less than three times by 2001.

At the heart of this dispute was a question upon which people of good will could and did strongly disagree. Was the creation of majority-minority districts simply a way to ensure that people long denied political power could achieve it? Or was it an inappropriate use of race and thus a violation of the Equal Protection Clause of the 14th Amendment to the Constitution?

In 1993 and 1996, the Supreme Court twice agreed with Everett in 5-4 decisions (Shaw v. Reno and Shaw v. Hunt). But in 2001, he lost 5-4 in Easley v. Cromartie because Justice Sandra Day O'Connor switched sides. Everett's concept of a colorblind Constitution would have to wait for another day.

But that day may be closer than most realize. President Obama has twice been easily elected president. He didn't need a racially contrived district to win those elections. Did he? No, his district was the United States of America! I'm confident that, if Robinson O. Everett were alive today, he would be smiling and he would make that point far more compellingly and far more eloquently than have I.

Next Sunday, my column will look forward to cases now before the Supreme Court and will speculate about the agenda of Chief Justice John Roberts.

The Shadow's drinking green beer, but Goldman can be reached: EMail Me