Is it political or racial gerrymandering?

Gerrymandering has been around since the early 19th century. Political gerrymandering is as American as apple pie. Racial gerrymandering is an unconstitutional violation of the Equal Protection Clause of the 14th Amendment. Telling them apart is hard and intensely controversial. Let's try.

However, before trying, it's necessary to look back to the Supreme Court's ruling in Baker v. Carr in 1962. The fundamental question was whether federal courts have the power to determine the constitutionality of a state's voting districts.

Justice William J. Brennan, writing for the 6-2 majority, held that they do have such power. And Justice William O. Douglas, writing a concurring opinion, stated that if a voter no longer has "the constitutional value of his franchise [right to vote] and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him." With its landmark decision, the court entered what became known as the "political thicket." It's been there ever since.

The enactment of the Voting Rights Act (VRA) in 1965 and its subsequent amendments has significantly shaped, and some would argue significantly distorted, the decisions the courts have taken over the past half-century. Section 2 of the VRA applies nationally and it requires that, if racially polarized voting exists and if a majority-minority district can be drawn, then it must be drawn. Section 5 of the VRA, which covers nine states and portions of other states, including North Carolina, previously required that the number of majority-minority districts cannot decrease during redistricting. The court's Shelby decision last month rendered Section 5 inoperable.

One of those districts, the 12th in North Carolina, commands our attention. It was and remains a majority-minority district created pursuant to Section 5 of the VRA in the early 1990s. The grotesquely contorted 12th District resembled a snake slithering up I-85 from Gastonia to Durham. When it was created in 1992, two-thirds of its residents were African-American.

It triggered a titanic legal battle that would last until April 2001 and would be the subject of three cases decided by the Supreme Court, all described in meticulous detail by Tinsley Yarborough in his wonderfulbook, "Race and Redistricting."

The fundamental issue brought before the high court was whether the two majority-minority districts being proposed in North Carolina were simply the result of traditional and legal political gerrymandering, or were they an impermissible and illegal racial gerrymander, driven by the preclearance requirements of Section 5 of the VRA?

The challenge that the two districts were an illegal racial gerrymander was led by an improbable individual, Robinson Everett, a Duke law professor and former chief judge of the Court of Military Appeals. Everett was a moderately liberal Democrat with close connections to Durham's African-American community.

Everett deeply opposed discrimination against blacks, but he was just as deeply opposed to race-conscious policies that were designed to benefit one race over another. He believed North Carolina's two majority-minority districts were unconstitutional racial gerrymanders.

Everett prevailed in the first two of the cases before the Supreme Court, Shaw v. Reno (1993) and Shaw v. Hunt (1996). But he lost in the third and decisive case, Easley v. Cromartie (2001). Writing for the 5-4 majority, Justice Sandra Day O'Connor stated that the majority-minority districts were not racial gerrymanders and were, therefore, not a violation of the Equal Protection Clause of the 14th Amendment.

The loss was a bitter defeat for Everett, especially because in one of the earlier rulings, Justice O'Connor, writing for the 5-4 majority in that case, had stated in part, "A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographic and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid."

Robinson Everett died in 2009, having won two battles but not the war. But this fight will continue. Any review of the voluminous rulings of the courts over the decades makes evident the complexity, subtlety and controversial nature of a racially charged issue like this.

But, that said, it's abundantly clear that whether you believe the proliferation and maintenance of majority-minority districts are beneficial and essential, or whether you believe they are an unconstitutional violation of the Equal Protection Clause, there is simply no doubt that there has been a profound change in the American political landscape since Baker v. Carr in 1962 and the VRA in 1965.

That changed landscape has been attributable to many factors, including, of course, the VRA. But the one factor that everyone knows and that defies denial is that this nation has now twice elected an African-American president of the United States. And both times he won the popular vote handily and the electoral vote overwhelmingly. He did not need an African-American district In order to win.

That's enough to tell this writer that it's only a matter of time before the high court will deal with more cases that challenge racial gerrymandering.

And it tells me that it's a question of when, and not if, the court ends it, clearly and decisively.

I can actually think of a wonderful precedent the court could use in reaching such a decision. Remember Brown v. Board of Education in 1954? The court ruled that separate educational facilities are inherently unequal. Its ruling was 9-0!

If segregated school districts are inherently unequal, what's to love about segregated voting districts?

The Shadow's gone off to law school, but Goldman can be reached at: EmailMe