WHEN the Supreme Court returns to the issue of race and congressional districts this fall, the center of attention should be Associate Justice Sandra Day O'Connor, author of a controversial 1993 decision that allowed whites in North Carolina to challenge majority black electoral districts. That decision, Shaw v. Reno, imperiled similar districts in the South and prompt-ed more than six lawsuits.
But Justice O'Connor's writing in a 1994 voting-rights suit in Florida, which also involved majority-minority districts, suggests that her views on the subject are changing. This could mean the court will move in a new direction this term on this divisive issue.
The Shaw decision was plainly critical of the concept of majority-minority districts; the Florida opinion was not. Together, O'Connor's writings present conflicting views of race and political power that the court must reconcile. Shaw said that colorblindness is the most important constitutional principle and that any deviation from it threatens racial progress. The Florida decision, Johnson v. DeGrandy, recognized that advancing political opportunity for minorities requires a consideration of race because our society continues to be polarized.
The white plaintiffs in the North Carolina case claimed their rights had been violated by efforts to create two majority-black congressional districts. Led by O'Connor, the court ruled 5 to 4 to allow their challenge; a trial on the districting map took place in March. This summer a three-judge federal court upheld the North Carolina plan as a constitutional exercise of state power, and a similar challenge to California's congressional-districting plan was rebuffed. But plans in Louisiana, Texas, and Georgia, challenged after the Shaw ruling, were struck down by other federal courts that proclaimed them unconstitutional racial gerrymanders. All five lawsuits have been appealed to the Supreme Court.
The North Carolina case embodies contentious racial factors well known across the South. Although North Carolina's population is roughly 22 percent black, no black had been elected to Congress for nearly a century. White power brokers had used exclusionary tactics to restrict blacks from political participation. Even when overt barriers to voting were dropped, racially polarized voting still prevented blacks from winning office.
North Carolina legislators, who had faced previous voting-rights lawsuits, responded to the state's racial history with a 1992 congressional districting map produced from a compromise among black lawmakers, their white colleagues (who hold a sizable majority in the General Assembly), and the Bush administration's Justice Department. But its two strangely shaped majority-black districts seemed to offend O'Connor. Reapportionment, she said, ``is one area in which appearances do matter.'' When individuals are pushed together simply because they are of the same race, O'Connor said, that amounts to ``political apartheid.''
``Racial gerrymandering even for remedial purposes,'' she concluded, ``may balkanize us into competing racial factions ....''
In the Florida case a year later, colorblindness was not set on a legal pedestal. The major issues were presented in a more traditional posture: Minorities (here, blacks and Hispanics) were challenging the state legislative-districting map, claiming that they were underrepresented.
This time Associate Justice David Souter, who had dissented in Shaw, wrote the majority opinion, which upheld the state plan. It was a sober look at population statistics and an accounting of history, not a rhetorical broadside. Because the state's redistricting plan provided each group with roughly proportional representation, the court said the state's failure to create additional majority-minority districts did not violate the Voting Rights Act. One key section bars electoral plans that in effect dilute minority voting strength. At the same time, the court refused to say that proportional representation of minorities is an absolute defense to a charge of vote dilution.
O'Connor wrote a concurring opinion that is little short of remarkable in light of last year's Shaw decision. ``The [majority] opinion's central teaching is that proportionality - defined as the relationship between the number of majority-minority districts and the minority group's share of the relevant population - is always relevant evidence in determining vote dilution, but is never dispositive,'' she wrote. ``Lack of proportionality is probative evidence of vote dilution.'' Thus O'Connor finds just a year after Shaw that the absence of a proportional number of majority-minority districts in a redistricting plan is evidence of vote dilution.
Under O'Connor's own formulation, North Carolina's much-criticized plan could have been challenged by blacks in a vote-dilution case. With a 12-member congressional delegation and only two black representatives, the state is still short of the proportionality that was found acceptable in the Florida case. Furthermore, the only way to create majority-minority districts and blunt the evidence of vote dilution is to take into account the racial impact of the districts that are drawn - in other words, to be race conscious when redistricting.
O'Connor ignored her own harsh language from Shaw on this subject and declined to join Associate Justice Anthony Kennedy, who wrote a separate opinion citing the earlier ruling to warn about the dangers of race-conscious districting.
Without expressly repudiating Shaw, O'Connor's opinion in the Florida case suggests a shift in her thinking that should encourage those who worry that the decision will imperil minorities' political progress. She now appears willing to align herself with the more temperate language of Justice Souter and an analysis that pays more than scant attention to the racial bias that made the Voting Rights Act necessary originally. Given the court's makeup, her position will be critical as the court faces the consequences of what the O'Connor-led majority wrought in the Shaw decision. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.