First Among Equals by Kenneth W. Starr

Author:Kenneth W. Starr [STARR, KENNETH]
Language: eng
Format: epub
Tags: CUR005000
ISBN: 9780446554169
Publisher: Grand Central Publishing
Published: 2008-12-14T05:00:00+00:00

Chapter Nine

COUNTING BY RACE II:

GERRYMANDERING AND VOTING

AS WITH AFFIRMATIVE ACTION, the 1990s also brought greater clarity to the law of race and voting. The great decisions of the 1960s upholding Congress's power as exercised in the Voting Rights Act had given way to a series of halting, tentative decisions suggesting, once again, uncertainty on the part of the Court. And uncertainty carried with it lack of consensus.

The new battleground was congressional redistricting. In the wake of the 1990 Census, states covered by the provisions of the Voting Rights Act requiring advance clearance by the Justice Department of changes in election law and procedures began the process of submitting their new congressional districting plans to the Justice Department for review. The Justice Department's Civil Rights Division asked forthrightly for the first time whether the plans created appropriate opportunities for African-American candidates to be elected to seats in the House of Representatives.

This was ironic. The Justice Department under Ronald Reagan had worked hard to promote the ideal of racial neutrality in government decision-making. But under President George Bush (the elder), policy changed. Led by a delightful, charming New York lawyer, John Dunne, the Bush I Justice Department pushed the race envelope. It demanded, in effect, set-aside districts. It did so through its aggressive interpretation of the Voting Rights Act. As Dunne saw it, the Voting Rights Act required covered states to maximize the opportunity for African Americans to elect a minority representative through creative, case-sensitive line-drawing of district lines.

I had serious doubts about all this. But Attorney General Dick Thornburgh supported the Civil Rights Division's race-conscious policies, and given the organization of the Justice Department, it was not within my power to call a halt to it. Unless the legal issue was one involving an appeal from a lower federal court to a court of appeals or an effort to seek review in the Supreme Court, the call was not for the solicitor general to make.

The issue was not unfamiliar to me, though, even if the responsibility belonged to others in the Justice Department. In the early 1970s I had served as a law clerk on the old Fifth Circuit (a court of appeals whose jurisdiction at the time ranged from Florida to Texas). We saw from time to time questionable election practices coming out of the Deep South. I understood full well that race could play a decidedly negative role in elections, including practices designed to manipulate the process unfavorably to blacks— practices that Congress tried to outlaw. I had written a law-review article that argued in favor of federal courts having the power, when necessary to vindicate voting rights, to actually overrule an election and order a new one.

This Justice Department approach raised squarely a question of “benign” or “inclusive” line-drawing on grounds of race. It was the Bakke issue—whether lines can be established on grounds of race in order to be more inclusive of minorities—applied to the setting of congressional redistricting. The Supreme Court had never faced this issue.

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