The legal (de)construction of geography: race and political community in supreme court redistricting decisions

Abstract

This article examines the different conceptions of racial identity and ‘geography’ in two landmark Supreme Court decisions, Shaw v. Reno (1993) and Easley v. Cromartie (2001). Both decisions evaluated similar Congressional redistricting plans in North Carolina, but reached opposite conclusions. In Reno, the Court based its reasoning on the ‘objective’, ‘natural’ and ‘rational’ geography of North Carolina. Such geographic relationships create political communities and constrain the way in which state legislatures can draw electoral districts. In contrast, the Easley decision based its reasoning on voting behaviour, and makes an implicit appeal to deliberative democratic principles. From this perspective, political relationships create the geographic relationships defined by Congressional district boundaries. Where the Reno decision treats race as an arbitrary social distinction that the state should not use as the basis of political representation, the Easley opinion argues that the state can consider differences in racial voting behaviour during the redistricting process. More fundamentally, the Easley decision implies that racial identity is formed by deliberative political communities, rather than being an objective, static characteristic. This suggests that disputes over spatial relationships are critical to the construction of hegemonic racial identities, and that space is fundamental to the conception of racial difference.

Keywords:

• gerrymandering
• hegemony
• legal geography
• political representation
• racial identity
• redistricting

Notes

Technically, Shaw v. Reno (1993) did not rule that the districts in question were unconstitutional. Rather, O'Connor decided that there was a constitutional basis for the (white) plaintiff's legal complaint. That is, this decision meant that the plaintiffs could make the claim that the redistricting plan violated their constitutional rights. Three years later the Supreme Court addressed the constitutionality of the districts themselves, ruling against them in Shaw v. Hunt (1996). Reno is the landmark decision in this series of cases, however, and the language and reasoning used in Hunt is similar to that used in Reno.

The treatment of racial identity in Shaw and similar cases was a little more complicated than this because the Court also recognized a kind of right to representation for minority groups that can be identified as a regional community as well (Forest 2001).

Keith Bybee (1998) provides an extended defence of non‐white majority districts, arguing that the Court should be more concerned with the legislative process that produced the districts rather than with their resulting appearance. For Bybee, political deliberation, rather than political identity, is the appropriate object of judicial concern. Breyer's argument in Easley mirrors this argument by focusing attention on the process of redistricting in the legislature and on the basis of political interests within minority groups.

Like other jurisdictions covered by Section 5 of the Voting Rights Act, the state's districting plan required approval from the Federal Department of Justice. The interactions between the state and Department of Justice made the politics of redistricting even more complicated than usual (Forest 2001; Webster 2000).

In its simplest form, ‘seat‐vote’ mismatch means that in a system of territorial representation with simple majority, single‐member districts, a minority party will always elect fewer representatives than their proportion in the voting population (Johnston 2002). For example, in a city with ten electoral districts and where 30 per cent of the voters are Democrats, they might be expected to win three seats (30 per cent). Democratic candidates, however, will only win in districts that have a majority or plurality of Democratic voters. If Democrats and Republicans are spread uniformly throughout the city, Republicans would be expected to win all ten districts (100 per cent). Alternative electoral systems can alter this relationship (Arrington and Ingalls 1998), but such systems are not used for Congressional and most state legislative elections.

This is not to say that the persistent under‐representation of women, and racial and ethnic minorities in most legislative bodies is caused solely by seat‐vote mismatch. Rather it is one reason that courts will not accept non‐proportionality as sufficient evidence of illegal discrimination.

In Shaw v. Reno (1993), the plaintiffs challenging the state's redistricting plan lost in lower court, and were the appellants before the Supreme Court. In Easley v. Cromartie (2001), the group challenging the plan won in lower court and were thus the appellees before the Supreme Court when the state appealed the District Court's decision.

In a dissenting opinion, Justice Thomas dismisses the substantial statistical link between race and voting behaviour as a ‘stereotype’ (Easley v. Cromartie 2001: 1474). This suggests that he is less concerned with the issue of registration versus voting data than he is with any use of racial information in redistricting.

Although Breyer focuses on differences in white and African American voting behaviour, Canon (1999: 48) argues that Congressional representatives of non‐white majority districts often use a ‘balancing perspective which notes the importance of racial difference, but makes an explicit effort to address’ both commonalities and differences between racial groups. He argues that such a balancing position, requiring both deliberative democratic practices and political entrepreneurialism on the part of the representative, is used far more often in non‐white majority districts than in white majority ones.