ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE Voting Rights and the Supre

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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE Voting Rights and the Supreme Court: Statement of Laughlin McDonald, Director, ACLU Voting Rights Project For IMMEDIATE RELEASE September 27, 1994 WASHINGTON -- The most controversial and far-reaching voting rights issues to come before the Supreme Court during the 1994 Term will likely involve congressional redistricting and the meaning of Shaw v. Reno. In Shaw, a 1993 decision involving congressional redistricting in North Carolina, the Court recognized for the first time a constitutional cause of action where a district is "so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race." According to the Court, a district found to be "irrational" or "bizarre" would be subject to strict constitutional scrutiny, and could only be retained if the state showed that the district promoted a compelling state interest and was narrowly tailored. Shaw-type challenges were subsequently filed against congressional redistricting in Florida (Johnson v. Smith), Georgia (Johnson v. Miller), Louisiana (Bays v. Louisiana), and Texas (Vera v. Richards). Thus far, the district courts have upheld the plan in North Carolina and struck down congressional districts in Georgia (the Eleventh, represented by Cynthia McKinney), Louisiana (the Fourth, represented by Cleo Fields), and Texas (the Eighteenth, represented by Craig Washington; the Twenty-ninth, represented by Gene Green; and the Thirtieth, represented by Eddie Bernice Johnson). The Florida case has not yet gone to trial. Since these cases involve challenges to congressional redistricting, they are required to be heard by three-judge district courts, with appeals going directly to the U.S. Supreme Court. In the Georgia, Louisiana and Texas cases, various combinations of state defendants, intervenors represented by civil rights organizations and the United States have appealed. In the Louisiana case, the Court granted the defendant's application for a stay, allowing congressional elections to go forward under the challenged legislative plan. Following the action of the Supreme Court, the district court in Texas stayed its own order. The defendants in the Georgia case have also sought a stay from the Supreme Court. Although the facts surrounding redistricting -- such as district shape -- and legal nuances are different in each case, essentially they all involve the issues of: * Whether Shaw should be narrowly construed to apply only to districts that are truly bizarre (this was Justice Souter's view in his dissent in Shaw, as well as that of Judge Edmondson who dissented in the Georgia case). * Whether any district, regardless of its shape, in which race was a factor, or a "substantial" or "overriding" factor, is subject to strict scrutiny (this was the view, with differences in emphasis, of the majority in the Georgia, Louisiana, North Carolina and Texas cases). * The meaning of "narrow tailoring" (the court in Louisiana said it meant eliminating the second majority black district). If the Court agrees to hear one or more of the Shaw cases that are now in the pipeline, and it is difficult to imagine that it would not, and if it construes Shaw broadly to reach all race-conscious redistricting, and if narrow tailoring means drawing districts that are majority white, or are only marginally majority-minority, then the consequences would be potentially disastrous for minority office holding. Of the 17 African American members of Congress from the South, all were elected from majority-minority districts. (See chart on page three.) The average minority voting age population (including blacks and Hispanics) in these districts is about 60 percent. State legislatures and city and county governments that have majority-minority districts would also be subject to challenge. Since minorities have had success primarily majority-minority districts, an expansive reading of Shaw could produce a kind of political ethnic cleansing at all levels of office holding. The concerns of the minority and civil rights communities over the implications of Shaw are heightened by the anti-voting rights mood of some of the Justices of the Supreme Court. Justice Thomas, joined by Justice Scalia, wrote in a concurring opinion in Holder v. Hall, which dismissed a Voting Rights Act challenge to the sole commissioner form of government in Bleckley County, Georgia, that Section 2 of the Voting Rights Act did not reach claims of vote dilution, but instead dealt only those of vote denial. Since the gains in minority office holding since 1965 are directly linked to successful vote dilution challenges (under the "result standard of Section 2, and the "purpose or effect" standard of Section 5), adopting Justice Thomas's view would be a greater setback for voting rights even than an expansive reading of Shaw. Fortunately the rest of the court (excepting Justice Scalia) rejected, or did not endorse, Justice Thomas's view. In fact, Justice Stevens, in a dissenting opinion, called Justice Thomas's analysis "radical" on no less than three occasions. African American Members and Racial Composition Of Southern U.S. Congressional Districts, 103rd Congress, First Session Voting Age Population District Black Hispanic Total Minority Member Alabama 7 63.5 0.3 63.8 Hilliard Florida 3 50.6 2.7 53.3 Brown Florida 17 54.0 24.1 78.1 Meek Florida 23 45.7 9.1 54.8 Hastings Georgia 2 52.3 1.6 53.9 Bishop Georgia 5 57.5 1.8 59.3 Lewis Georgia 11 60.4 1.0 61.4 McKinney Louisiana 2 56.2 3.8 60.0 Jefferson Louisiana 4 62.6 0.9 63.5 Fields Mississippi 2 58.1 0.5 58.6 Thompson No. Carolina 1 53.4 0.7 54.1 Clayton No. Carolina 12 53.3 0.8 54.1 Watt So. Carolina 6 58.3 0.5 58.8 Clyburn Tennessee 9 54.1 0.7 54.8 Ford Texas 18 48.6 13.7 62.3 Washington Texas 30 47.1 15.1 62.3 Johnson Virginia 3 61.2 1.2 62.4 Scott Source: 1990 U.S. Census, Population and Housing Profile, Congressional Districts of the 103rd Congress, C.Q. Weekly Report, V. 51, pp. 3473-3487. --endit-- ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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