Back to the Drawing Board on Redistricting
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ELIZABETH FARNSWORTH: Now more on today’s ruling from Eva Rodriguez, Supreme Court reporter for “Legal Times” and Court TV. Thanks for being with us.
EVA RODRIGUEZ, Legal Times: Thank you.
ELIZABETH FARNSWORTH: What was the reasoning in a little more detail than we just heard on these cases?
MS. RODRIGUEZ: Well, let me start off by saying that last year, the court struck down the Georgia district that we just heard about, saying that because race was a predominant factor in shaping that district, it was unconstitutional. What the court did today was to take, albeit a baby step, but one that will make it even tougher for people who’d like to see majority minority districts. And this is why it’s tougher, because they said even if you do consider other factors that are traditionally considered in redistricting cases, for example, a protection of incumbents, if race is still the predominant factor, you lose. It is utterly unconstitutional.
MS. RODRIGUEZ: She remains the most fascinating player in all of this because while voting to strike down the district, she wrote a separate concurrence in which she was very careful to tell the lawyers not only in this case but around the country that she is not–that she does not have a closed mind altogether about possibly in the future allowing some use of race in drawing up these districts. She was very careful, though, to say that in the future, as in this case, if she believes that race is predominant, then you’re going to, you’re going to lose her vote as well, but she still has a little bit of an open mind that has left sort of a crack there for folks to try to slip in.
ELIZABETH FARNSWORTH: And we heard a little bit of Justice Stevens‘ dissent in the piece. What else was in that dissent? What points did he make?
MS. RODRIGUEZ: Basically, I mean, at times he’s impassioned, as Justice Stevens usually is. He feels deeply about these issues, in particular civil rights, and what he said was it is not always illegitimate to consider race, especially when you’re talking in the context of the Voting Rights Act, which was meant to eliminate or at the very least reduce the rampant discrimination that we knew in this country and still to a certain extent know in certain parts of the country. What he says is that perhaps because we’re talking about a voting rights case that it’s totally legitimate to consider race, especially in considering with this, uh, redressing past wrongs.
ELIZABETH FARNSWORTH: The court is five/four almost all of these cases, isn’t it?
MS. RODRIGUEZ: That’s right.
ELIZABETH FARNSWORTH: There have been several of these cases.
MS. RODRIGUEZ: That’s right.
ELIZABETH FARNSWORTH: And yet, there are areas of these cases where it breaks down a little differently but it looks like it’ll remain five/four in this.
MS. RODRIGUEZ: It sure looks like it.
ELIZABETH FARNSWORTH: How will–the part–the thing I don’t understand, these cases are brought in many cases, these, these particular cases are brought because of the Voting Rights Act. The Voting Rights Act pushes states to try to get more minority representation. How can these two be, be reconciled?
MS. RODRIGUEZ: That’s a good question, and that’s a question that the Justices still have not definitively answered here. And it puts the states in a real Catch-22, as you noted. On the one hand, they’ve got the Justice Department prodding them to act to make sure that minorities are getting as full of a voice in this government as possible. On the other hand, when the states act to try to incorporate minorities into the process by drawing up majority minority districts, they get slapped down by the Supreme Court. It’s a really fine line, and about the only thing we can really take away from today’s decision that’s a real bright line is that the more conservative Justices on the court, uh, are telling people out there, if we believe, as we did in these cases, that race was the motivating factor in shaping these districts, it’s unconstitutional.
ELIZABETH FARNSWORTH: And the reasoning there is I think in one of the cases before Sandra Day O’Connor said it, she called it smacking of apartheid. Is that the reasoning?
MS. RODRIGUEZ: No, that’s right. That’s right. What the conservatives are saying is this is, in essence, segregation for what you–what liberals might think of as a good reason. Segregation was not permitted after ’54, and we’ve struck that down before. The Supreme Court conservatives are saying why should we allow it now? What they object to is what, in essence, is the appearance that the Justice Department and the states are trying to segregate blacks and Hispanics and other minorities into little bizarre voting districts to enhance their power. And what they say is while they may–the conservatives on the court, while they may be in total agreement in terms of the goal of full participation by everyone, they are offended by the notion that you would have to segregate people by race and that ultimately, not just that offends them personally, but that ultimately it offends the 14th Amendment of the Constitution.
ELIZABETH FARNSWORTH: And yet to go back to the dissent, Justice Stevens says it may be justified?
MS. RODRIGUEZ: Yes, he does, and it’s interesting that Justice Stevens, who was considered perhaps the most liberal member of the court, makes an argument in his dissent that the court maybe should back off of deciding these cases a little bit. Normally it’s conservatives who are ranting and raving that liberals, liberal judges in particular get way too involved in political decisions. What Justice Stevens says today in a sort of throw-away line, but I think telling, is that the court perhaps should let the states–should let the states decide what is ultimately a political issue. So it’s interesting. The liberal is arguing for, for restraint.
ELIZABETH FARNSWORTH: What happens now? What happens to these districts?
MS. RODRIGUEZ: In essence, if we could look at what happened to last year’s district, the 11th district Congresswoman McKinney, in essence, wiped out and literally the state has to go back literally to the drawing board and they have to map out a new district, and it has to be–has to pass muster with a special three-judge panel, federal judge panel in that district. And, again, they’re going to be keeping a very close eye on whether or how much race was a factor in drawing the new one.
ELIZABETH FARNSWORTH: Of the five districts that were dealt with today, four were represented by black Democrats, one was represented by a white Democrat. What happens to them?
MS. RODRIGUEZ: Ostensibly, they no longer have a district for which to seek reelection, and they may face–find themselves in the position that Congresswoman McKinney finds herself in, and that is she’d like to run for reelection again. She says she intends to run for reelection again, but her old district is gone, so now she finds herself running for reelection not in the predominantly black district to which–from which she won her seat but now in a predominantly white district. Whether that’s a disadvantage or not for her we don’t know, but clearly it’s not the position she was in a few years ago.
ELIZABETH FARNSWORTH: Well, thanks, Eva, for being with us.
MS. RODRIGUEZ: Thank you.