Supreme Court Restricts Voting Rights Act's Scope

By Robert Barnes

A fractured Supreme Court yesterday narrowed the protections of the Voting Rights Act, saying it does not require governments to draw electoral districts favorable to minority candidates in places where minorities make up less than half the population.

By a 5 to 4 vote, the court said race must be considered only in drawing boundaries where a "geographically compact group of minority voters" make up at least 50 percent of a single-member district.

The decision will limit the legal options for minorities challenging redistricting efforts that they believe dilute their voting rights after the 2010 Census. The court said Section 2 of the Voting Rights Act cannot be read as requiring "crossover districts," where minority voters are grouped in such significant numbers that they can elect a representative of their choice with only a modicum of support from majority voters.

The splintered opinion showed how divided the court remains in considering the issue of race and political representation, and how uneasy it is about the role the judiciary must play.

"There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions," wrote Justice Anthony M. Kennedy in the plurality opinion.

He was joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. Justices Antonin Scalia and Clarence Thomas agreed with the outcome but not with the reasoning behind Kennedy's decision.

The opinion confirmed Kennedy's likely pivotal role when the court next month considers a constitutional challenge to Section 5 of the Voting Rights Act, which requires all or parts of 16 states with a history of racial discrimination to get federal approval before enacting any change to their voting laws.

Several election law experts said yesterday's decision showed that although Kennedy might not be ready to reject the act as unconstitutional, he is open, in the words of Richard L. Hasen, a professor at Loyola Law School in Los Angeles, to interpreting the act "in ever stingier ways."

Those challenging the constitutionality of the statute say it has outlived the purpose it served when first enacted in 1965 and is out of step with an America "that has elected Barack Obama as its first African-American president," according to the petition filed by a Texas utility district that is the plaintiff in the case next month.

But Kennedy gave some hope to the other side with language in the opinion that appeared to recognize the importance of the voting rights legislation.

"Racial discrimination and racially polarized voting are not ancient history," Kennedy wrote. "Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions."

The case before the court, Bartlett v. Strickland, concerned a decision by the North Carolina legislature to enhance minority representation by creating a district that was 39 percent minority. It has consistently elected a black representative. But to create the favorable environment, lawmakers violated a provision of the state constitution that said district boundaries could not cross county lines.

The state Supreme Court struck down the district, rejecting lawmakers' argument that the district was required to comply with the Voting Rights Act.

Kennedy said that the state court got it right and that only districts where minorities made up more than 50 percent are protected.

The majority-minority rule "draws clear lines for courts and legislatures alike," Kennedy wrote. At the same time, he wrote, the decision should not be interpreted to "entrench" majority-minority districts.

His opinion expressed the same ambivalence toward crossover districts. He acknowledged that they fostered the cooperation between races the act was intended to achieve but said the court should not "require, by force of law, the voluntary cooperation our society has achieved."

Justice David H. Souter, writing for the liberal dissenters, said that the crossover districts best fulfill the goals of the Voting Rights Act and that the plurality's decision will "force the states to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics."

He noted that as a practical matter, crossover districts are working. Of nine North Carolina House districts where blacks make up more than 50 percent of the voting-age population, all but two elected a black representative in 2004. In 12 additional districts where blacks make up at least 39 percent of voters, all but one elected a black.

Taken together, Souter said, that meant blacks, who make up about 20 percent of the state's voting-age population, have an opportunity to elect a representative of their choice in about 17.5 percent of the state's legislative districts, "a proportional electoral opportunity."

The case prompted five of the nine justices to explain their views.

Justice Ruth Bader Ginsburg wrote separately that the decision "returns the ball to Congress' court" and said lawmakers could "clarify beyond debate" their intentions.

Thomas and Scalia said the act does not authorize any claim by minority voters that their influence is diluted, no matter the size of the minority population. They said the court's decisions that try to interpret the nonspecific language of Section 2 have produced "a disastrous misadventure in judicial policymaking."