GWEN IFILL: Ever since Melvin Watt was elected to congress in 1992, joining a highly diverse freshman class of lawmakers, his North Carolina district ground zero in a high stakes legal battle involving two divisive issues: race and politics. At issue: was this elaborately drawn district, which in 1991 stretched 160 miles through 10 counties, created to elect a Democrat or an African American?
This contentious question has worked its way to the U.S. Supreme Court four times in eight years. The dispute began in 1990, when the Justice Department required 13 states to respond to voting rights concerns by creating districts with larger minority populations. One result in North Carolina was Mel Watts' 12th District -- its painstakingly drawn boundaries included Charlotte and other big cities. The result: apopulation mostly Democratic, mostly black.
But several white residents, represented by Duke Law Professor Robinson Everett, challenged its constitutionality.
ROBINSON EVERETT: This is the wrong use of racial classifications in a way that tended to divide the North Carolina population into different racial blocks, and that really offended them.
GWEN IFILL: Everett and his clients won in 1993, when the high court said the redrawn district might violate the rights of white voters. Justice Sandra Day O'Connor, writing for the majority at the time, condemned the plan as political apartheid. In 1996, the issue made its way back to the high court, and Congressman Watt was there, defending his district.
REP. MELVIN WATT: Factors such as creating a predominantly urban district and a predominantly rural district, and factors such as incumbent protection, were superimposed on the racial issues, so that all of those factors are important in this case, and I don't think race predominates at all.
GWEN IFILL: But the Court disagreed again, striking down the district as unconstitutional. The state redrew the lines in 1997 and again in 1998, each time reducing its African American population -- now down to 36 percent. Today's case addressed a specific question: are North Carolina's political boundaries based on race, which would be unconstitutional, or based on politics, which would be constitutionally acceptable?
In a 5-4 ruling, the high court said the oddly shaped district is legal. Writing for the majority, Justice Stephen Breyer said: "The evidence…does not show that racial considerations predominated in the drawing of District 12's boundaries. That is because race in this case correlates closely with political behavior." But Justice Clarence Thomas, in the dissent, argued that the lower court was correct, "that race was foremost on the legislative agenda" when the boundaries were drawn.
GWEN IFILL: Now, the potential fallout -- both legal and political -- from today's decision. Tod Cox is the counsel of record on the North Carolina case for the NAACP Legal Defense and Educational Fund; Ronald Rotunda is a constitutional law professor at the University of Illinois in Champagne-Urbana; and Tim Storey is the coordinator of the redistricting task force at the national conference of state legislatures.
Tim Storey what is this significance of this decision today for the states?
TIM STOREY: Well it's an important one because all the states are poised to start drawing new maps for both state legislative districts and congressional districts, and they've been waiting for this decision to come down from the Supreme Court to perhaps offer a little more guidance on the delicate balance between race and other districting principles and getting the job done. So this decision is going to be poured over in every state capital late through the night tonight I'm sure because these redistricting deadlines are looming in all 50 states. As a matter of fact, there are four states, which are out of the gate very quickly have already drawn preliminary maps and have to get them adopted and in place within the next few weeks.
GWEN IFILL: Which states are those?
TIM STOREY: Iowa, Indiana, New Jersey, and Virginia and again these are legislative district maps, and in Iowa and Indiana actually they have congressional district maps that are pretty far along in terms of being drawn and ready to go.
GWEN IFILL: And are voting rights concerns likely to affect those four states?
TIM STOREY: Oh, absolutely. The states again are very aware they need to comply with the Voting Rights Act and no state legislature wants the court to come in and usurp their power by throwing out a map that they have designed and that they've passed. As a matter of fact, one of the key elements I thought out of the decision today was that the Supreme Court once again reiterated that it's the state legislatures who have the authority to do redistributing in the United States, and so the states getting out of the gate quickly -- in all 50 states are aware of this decision and will be carefully using it as they try to walk that delicate line between incorporating race into the process without going too far.
GWEN IFILL: Tod Cox, how significant is it from your point of view?
TOD COX: It's very significant. First of all, the decision in essence clarifies and reinforces what we have been arguing before the Supreme Court and other bodies all along; that it is not unconstitutional necessarily to take race into consideration, or that being race conscious in redistricting does not necessarily render a district plan unconstitutional.
Taken in-toto, what we have learned from the Supreme Court this decade, number one the voting rights is still constitutional and that jurisdictions, as Tim alluded to, are still under an obligation to comply with the Voting Right Act and its strictures, and that number three in pursuing political objectives if jurisdictions are aware of race or are conscious of race, that does not necessarily mean that the particular district they create is unconstitutional.
GWEN IFILL: Ron Rotunda, were you surprised by the court's action today?
RONALD ROTUNDA: Well it was 5-4 and it reflects the difficulties I think that society has with it. We eventually want to have a system where we measure people by the strength of their character not the color of their skin but in reaching that system we often look at color, and that's what five members of the Court did today.
GWEN IFILL: But one of the members -- Sandra Day O'Connor -- in the past has come down the other side of argument, what was different today?
RONALD ROTUNDA: She's the shift. She's the swing and she'll decide the cases. This is a very fact bound decision. That's I think a big problem. It doesn't give us any litmus test for what courts will do in the future. We know we're supposed to defer a little bit to the legislature. This is a very important case for incumbents, because the court said it's proper to massage a district in order to protect incumbency.
The Supreme Court has never said that districts have to be compact and contiguous. We saw the serpentine district on the map earlier and that's an objective test lower courts could use. But what they've given us, I think, is just more litigation. This case went on for a decade; it relates to the 1990 Census, and we're going to have another series with the 2000 Census.
GWEN IFILL: More litigation, Tod Cox?
TOD COX: Well, I believe that this decision actually has clarified quite a bit what the standard has been. There are those of us who were quite concerned after Shaw v. Hunt and Shaw v. Reno to about what exactly the standard was and where the line should be drawn, but we have learned over the decade particularly in the last few years that not only is the Voting Rights Act still to be followed -- but in complying with the Voting Rights Act and also in complying with political objectives, jurisdictions can be aware of race and that in fact jurisdictions must be race conscious enough in order to prevent minority vote dilution.
Let me read one passage from the decision today, which I think, helps clarify some things. Justice Breyer said, the Constitution doesn't place an affirmative obligation upon the legislature to avoid creating districts that turn out to be heavily even majority minority. And what I think he means there is that if a jurisdiction essentially sets out with political objectives, if they so happen in doing so group -- in that district they create minorities are grouped in a significant number that doesn't render that district unconstitutional. I think that's very clear direction to jurisdictions about the role of being race conscious and in redistricting.
GWEN IFILL: Tim Storey, did you think that there was a very clear direction today in the court's ruling?
TIM STOREY: I'm not sure about a clear direction. I do think that it offers a little more clarity and, as a matter of fact, I think we're glad that it was handed down now not at the end of the Supreme Court's term in June, because it will provide guidance as we really get cranked to the do task in the next several months.
But we have been preparing legislatures, legislators, legislative staff the past several years to get this job done and we have been really sort of driving home the fact that the Shaw case has said race cannot be the predominant motive in drawing a redistricting plan, and this case, this decision really underscores that and says it has to be balanced and one thing that can also be a key factor is political considerations in the redistricting process, and Gwen, I'm sure that it will come as no surprise that politics play a very key role in redistricting, and what this decision tells the states is you can now balance race to some degree as long as not the dominant factor in determining the lines where they wind up with politics or traditional things, or other things like one person, one vote.
GWEN IFILL: I guess I still wonder how do you do that. It sounds like states are in a rock and a hard place -- the rock being the voting rights act which you have to have representation of minority groups and the Supreme Court, which says you can't use race to determine how you do that.
TIM STOREY: They didn't go that far, I think, Gwen, to say you cannot use race. What they've said is that you can use race as long as not the predominant factor in drawing the plan. I wouldn't say it's between a rock and a hard place, but it is very difficult territory and somewhat uncertain for legislatures and that's unfortunate because we have to move forward; we have to get this job done as state legislatures. So you can go so far but you can't go too far; and it would have been nice if the court said, if you do a, b and c you have gone too far but it wasn't quite that explicit so there is still uncertainty and one thing you can guarantee -- and I think both Tod and Ronald would agree on this -- is that there will be massive litigation and the reason for that is the stakes are very high and if someone feels like they haven't gotten the map they want, they're going to take you to court and see -- take their shot in court. So this is going to be litigated. Ronald's point is a good one. It's taken us 10 years to sort of close off the litigation loop from the 1990 Census and we're just starting the 2000 Census.
GWEN IFILL: Professor Rotunda, why is it that race cannot be legitimately used in these cases? What has been the argument about that?
RONALD ROTUNDA: All nine Justices agree that you're not supposed to just corral people in districts based on color. This goes to a case in the 1940's -- Lightfoot -- where in that case it was white racists that tried to exclude all the blacks from the city of Tuskegee. Well, if you put all the blacks in a district outside of Tuskegee, or you're making Tuskegee lily white.
One of the... This is not a Republican-Democratic dispute. Newt Gingrich, for example, supported the district lines -- even the ones the Supreme Court invalidated earlier in this litigation. It helps Republicans. The 1990's Census there were 23 southern Democrat districts that lost substantial black voters and they made those districts move blacks into districts that were primarily black -- they were taken out of other districts.
And that made those districts more competitive for Republicans and helped Republicans get elected and the black voters instead of being the swing vote in three different districts were the predominant vote in one district. So in some sense this will make black voters less influential for the state but more influential for a particular district.
GWEN IFILL: Well, let me follow up on that for a moment, because in North Carolina 92 years passed since Reconstruction before black folks were elected to Congress. That was 1992 when Mel Watt and Eva Clayton were elected, so how does your neutral test idea stand up in that case?
RONALD ROTUNDA: Well, there is no doubt that the South and parts of the North discriminated on the grounds of color for many years. It took not just the 1964 Civil Rights Act but years of litigation and warfare by the NAACP. There was the Civil Rights Act; there were poll taxes, there was violence. There were a lot of ways that blacks were kept from the polls.
None of this stuff is acceptable. It wasn't acceptable 100 years ago; it's certainly not acceptable today. What has happened right now is that as blacks are pushed into one district, they get less influential in other districts. It's a tradeoff. And this is something that has helped some of the GOP politicians; has made some Democratic districts now competitive for GOP, and it's made other districts safer for the GOP incumbents.
GWEN IFILL: Tod Cox?
TOD COX: Well, what the professor seems to be missing is that the standard for redistributing to protect minority voting rights is found again through the Supreme Court decision Thornburgh v. Jingles and through its interpretation of the Voting Rights Act.
We still have situation inside North Carolina and all over this country where minority groups -- African Americans and other groups -- are unable to have an equal opportunity to elect candidates of choice -- and the Supreme Court has held in fact, all nine Justices would agree there is no place in our society for excluding voters based on race; and that the Voting Rights Act stands as the protector within the redistributing process to make sure that doesn't happen.
GWEN IFILL: But do you worry that today's ruling was not really about the entire Voting Rights Act but about this narrow idea about whether the lower court, the district court had actually looked at this properly whether they had used the right criteria -- doesn't that leave the room open for lots of litigation like everyone else is talking about?
TOD COX: Well I think there will be lots of litigation as Tim eluded to just because the redistricting process has begun but I think the danger that the lower court opinion set for us and set for everyone who is concerned about protecting the rights of everyone to elect candidates of choice is that it said race could never be a factor in redistricting. Well if that's the case, then you can't use race conscious remedies to remedy a violation of the Voting Rights Act.
I think that the district court opinion put us on a slippery slope. What the Supreme Court said is wait a minute, let's back up here, and recognize number one race is a part of redistributing process; jurisdictions who draw lines are aware of the racial population -- racial characteristics of the people who they are drawing lines around. But, number two all of opinions that we've had from the Supreme Court in the past few years have reinforced and reiterated the notion that the Voting Rights Act must be complied with and in that context I think that this decision allows injure additions to be race conscious enough to make sure they don't dilute minority voting strength.
GWEN IFILL: Tim Storey, we have begun to see the results of the 2000 Census and how dramatically in some areas racial composition has shifted; do you think that cases like this are going to change exactly how political representation shakes out the next ten years, especially having to do with this redistricting question?
TIM STOREY: Well, I think political representation is going to change dramatically in the next ten years, is going to dramatically in the next year after all of these new districts are put in place this. This case is one element of that. And, again, I don't think it will be ignored; I think that our audience is going to carefully pour over it -- legislators, legislative staff are going to carefully pour over it. The districts are going to be dramatically different.
It's a big cart turnover and we'll see where everything lands after it's all said and done and, again, the courts are going to weigh in and probably Justice O'Connor is going to weigh in; you were very accurate to point out she is the swing vote and over and over again she's been in that majority with that five Justice majority.
GWEN IFILL: Okay we'll all be watching; thank you very much.