
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SUNDAY, August 20, 1995                   TAG: 9508180097
SECTION: EDITORIAL                    PAGE: D2   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

ON REDISTRICTING, CONFUSION REIGNS

THE U.S. SUPREME Court's invalidation in June of Georgia's congressional districting was widely regarded as a race ruling to be lumped with recent affirmative-action cases. But another way of looking at Miller vs. Johnson, in which the court ruled that Georgia's black-majority 11th District was an unconstitutional racial gerrymander, is that the "conservative" majority traveled farther into a highly political thicket than most "liberal activist" justices would care to tread.

The result could be mass confusion.

Not that the terrain is entirely unfamiliar. Since the 1960s, the legislative power to draw congressional, state and local districts has been limited by the court's "one man, one vote" holding that the equal-protection clause of the 14th Amendment requires such districts to be of equal population.

That posed a few difficulties: Was it enough for districts to diverge in population by no more than, say, 5 percent? 10 percent? 1 percent? Still, the issue at least was quantifiable, and the advent of powerful computers has made it easy for politicians to map districts virtually identical in population.

The same computers also allow districts to be mapped for maximum political mileage. Apart from the equal-population constraint, the courts until this summer had been generally content to leave the politics of redistricting to the redistricting politicians.

After the 1990 Census, the pressure was on state legislators to maximize the number of minority-majority districts, no matter how bizarrely drawn the district. That was bad law - atrocious, really. It tended to aggravate or increase the very racial polarization it ostensibly was intended to address. But it came from the Voting Rights Act, and overreaching U.S. Justice Department interpretations of it, rather than from the judiciary. It reflected the political clout of a temporary alliance of white Republicans and Democratic blacks and Hispanics.

The Supreme Court was right to reject extreme and cynical racial gerrymandering, as in the Georgia case. The problem is with the way it reached its decision. The court did not simply say that the Justice Department had been overly zealous in its mandates and so restore lost leeway to state legislatures in drawing congressional districts. Rather, the justices declared an ambiguous new constraint: Race cannot be a "predominant" factor in drawing district lines.

But how much is "predominant"? Can race be more a factor, without becoming predominant, in some situations than others? In assessing whether race has been a predominant factor, should some kinds of other factors (geographic compactness, for example) be deemed more virtuous, and given more weight than other kinds of factors (say, incumbent protection)? For answering such questions, turning to objective data from the Census Bureau isn't much help.

Perhaps new insight will come when a three-judge panel reviews a revised Georgia districting plan at a hearing scheduled for this week. And maybe a bit more in cases from Texas and North Carolina that are on the Supreme Court docket this fall. And from lawsuits pending in Florida, Louisiana, New York and Illinois. More suits are expected to arise in other states; among them could be Virginia, with its one odd-shaped black-majority congressional district and its several odd-shaped black-majority legislative districts.

That's how judicial law tends to be made, how precedent tends to be set: one case at a time, over time. The prospect is for extensive litigation to pin the court down on inherently elusive questions better left in the political arena.

by CNB