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Volume 8 no. 4
UPDATE ON VOTING RIGHTS REDISTRICTING
On April 17, 1996, a divided three-judge district court panel for the Northern District of Florida ruled that the state's majority African-American third district was a racial gerrymander and thus unconstitutional, Johnson v. Mortham, No. 94-40025. The court ordered the state legislature to redraw the third district. On May 2, the state legislatures agreed on a slightly revised plan that eliminated the western areas of the 3rd district and reduced its African-American population from 55 to 46.5 percent and its African-American voting age population from 51 to 42 percent. As the MONITOR went to press, Governor Lawton Childs was expected to sign the legislation. The defendants in the case indicatied that they are still planning to pursue an appeal to the Supreme Court and request a stay.
In 1992, the state legislature was unable to agree on a congressional redistricting plan. A federal panel (DeGrandy v. Wetherell) then developed it own plan which inluded three new majority African-American districts including the challenged third district. An additional majority Hispanic district was also drawn, giving Dade County two majority Hispanic districts.
In its April 17 ruling the majority found that the plan was subject to strict scrutiny because "race was the predominant motivating factor in the drawing of district three..." The court proceeds to evaluate the plan by the strict scrutiny test of whether the plan meets a compelling state interest and if so whether it is narrowly tailored. The court for purposes fo analysis in this case assumes that compliance with the Voting Rights Act is a compelling state interest, but concludes that the evidence in this case does not support a finding that a Voting Rights Act violation existed. The court said:
"In sum, to state a 'strong basis in evidence' that a Section 2 violation has occurred, there must be some indication that past discrimination has actually hampered the ability of minorities to participate in the political process...through interaction with a 'certain electoral law, practice, or structure'...There is insufficient evidence to support such a finding in this case."
Further, the court finds "no evidence of any current voting practice, or procedures which denies or impairs the right to vote of African-Americans" and thus rules that the court that drew the plan lacked a compelling interest in remedying the effects of past discrimination. The panel while recognizing that it need not proceed to an analysis of whether the plan is narrowly tailored did so "to insure that our analysis is complete, recognizing that there may be further judicial review of this matter." The panel finds that less race based plans were available and that the plan was "unduly burdensome on the rights of innocent third parties." The panel reasoned:
"The DeGrandy court's opinion adoption of a plan that pulled widely seperated groups of African-American voters together to form District Three, while enhancing the proportional voice of African-American voters statewide, not only denied equal access to the political process to white voters within District Three, but also to African-American voters outside of District Three...Many of these voters may have been able to better form coalitions with persons placed in District Three. Instead, sacrificing their equal rights to vote may well have been the price of attaining fair representation for African-Americans statewide. In fact, the Special Master noted that the redistricting plan creating District Three had a retrogressive effect on some covered Section 5 counties, but discounted that finding because 'the overall plan substantially strengthens minority representation in Florida."
Judge Joseph Hatchett in his strong dissent asserts:
"The Majority finds that the DeGrandy v. Wetherell court did not have a compelling interest for creating Congressional District 3...and that District 3 was not narrowly tailored. The majority concludes that the DeGrandy court erred in finding as compelling interests compliance with the Voting Rights Act and remedying the effects of Florida's past discrimination against African-Americans. In reaching its conclusions, the majority strips the DeGrandy plaintiffs of a remedy and even more stange fails to provide a remedy to the plaintiffs in this case. In formulation this untenable result, the majority has (1) infused issues into the case that neither the plaintiffs nor defendents raised; (2) totally disregarded relevant precedent; (3) rewritten the requirements for claims under Section 2 of the Voting Rights Act; (4) ensured that the application of strict scrutiny is only 'strict in theory' but 'fatal in fact;' and (5) based many of its legal conclusions on internally inconsistent rationales. The majority's opinion in this case bears a striking resemblance to the sentiments that compelled the passage of the Fourteenth Amendment and the Voting Rights Act; namely, that African-Americans and other minorities are susceptible to exclusion from full participation in the political process."
The dissent also asserts that the principles established by the Supreme Court in Shaw v. Reno and Miller v. Johnson apply to plans developed by state legislatures and not to plans developed as in this case by courts. Judge Hatchett writes:
"While I do not suggest that federal courts may disregard the Constitution in crafting remedies for VOting Rights Act and consititutional violation, I do not believe that the same figorous standards applied to legislative bodies in enacting redistricting plans apply equally to federal court enacting remedial redistricting plans.... In addition, the Supreme Court suggested that remedial plans need not always be limited to the least restrictive means of implementation recognizing 'that the choice of remedies to redress racial discrimination is a balancing process left within the appropriate constitutional or statutory limits to the sound discretion of the trial court...
"I continue to believe that DeWitt v. Wilson provides a more appropriate framework for reviewing a court drawn plan.... In DeWitt, a three-judge federal court found that a 1992 redistricting plan that the California Supreme Court developed was constitutional nothwithstanding the court's consideration of race in drawing the lines...In reaching that result, the court stated that 'we conclude that in the context of redistricting, where race is considered only in applying traditional redistricting principles along with the requirements of the Voting Rights Act, that strict scrutiny is not required'...The Supreme Court summarily affirmed DeWitt the same day it issued its opinion in Miller v. Johnson...The majority has misapplied Shaw and Miller."
Louisiana
As we reported in the last MONITOR, on January 5, 1996, a three-judge panel for the third time struck down Louisiana's redistricting plan ruling that the plan violated the Constitution's equal protection plan because race was the predominant factor in the drawing of the majority African-American 4th district represented by Democrat Cleo Fields. On , an application for a stay of the order was filed with the Supreme Court.
In Georgia, the redrawn plan of the district court plan reduced the African-American voting age population in Rep. Cynthia McKinney's 11th district from 60.4 to 10.8 percent. She is running in the primary for the 4th district which is approximately 34 percent African-American. Rep. Sanford Bishop is running for reelection in the 2nd district whose African-American population dropped from 57 percent to 35 percent under the redrawn map. On February 6, 1996, the Supreme Court refused to grant a stay of the new map until the Court had considered a formal appeal. The U.S. Solicitor General filed an appeal with the Court stating that the new plan which reduced the number of African-American districts from three to one was unconsitituional and violates the Voting Rights Act and asked the Court to order the drawing of two African-American districts.
In Illinois, a three-judge panel ruled that Illinois 4th congressional district which is majority Hispanic is constitutional. While the panel recognized that "racial considerations predominated over all other factors in the configuration of the 4th congressional district," it held that the district was narrowly tailored to address the compelling state interest of remedying past discrimination. The panel described the district as an: "uncouth configuration; a Rorscach ink blot turned on its side; a wobbly eighth note; an unsually shaped bar bell," but wrote:
"Where the drawing of irregular lines is required to remedy established violations of the Voting Rights Act, the court need not flinch from its obligation to do so with a bold and deliberate pen."
  
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