ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, September 12, 1996 TAG: 9609130015
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
DATELINE: RICHMOND
A three-judge panel in Roanoke began hearing evidence Wednesday in a case that could require Virginia to redraw its congressional districts.
At issue is whether the first and only majority black congressional district in Virginia was legally designed.
The 3rd Congressional District - with a 62 percent black voting-age population - meanders 225 miles through portions of Norfolk, Portsmouth and Suffolk all the way northeast to Essex County, with tentacles stretching into parts of Richmond and Petersburg.
Since its inception in 1992, it has been represented by Democrat Robert ``Bobby'' Scott of Newport News, the first black to be elected this century to represent Virginia in Congress. Even if the court tells the state to redraw the district, Scott, a Harvard-educated lawyer with broad biracial appeal, is expected to hold his seat.
What's at stake is a broad principle about representative government. The court will decide if the General Assembly designed the district in 1991 to assure the election of a black congressman.
The U.S. Supreme Court, in a series of landmark rulings over the past 15 months that have redefined key election laws, has said that race cannot be ``the predominant factor'' in apportioning districts. Experts say Virginia may have a hard time proving otherwise.
The high court is saying legislatures should pay more attention to fostering geographical compactness and avoiding dividing localities when drawing the districts.
All eight independent cities in the 3rd District are split - with part of their black populations in the district and the rest of the voters in another.
The suit was filed by two 3rd District Republicans - Donald Moon, a retired Navy man, and Robert Smith, a black taxi driver and unsuccessful candidate for local office. Their attorney, Stephen Katsurinis, said he may try to stop the Nov.5 congressional election.
``It's not a Democrat-Republican thing, it's a matter of right and wrong,'' said Moon, who long has been involved in civil rights issues affecting Native Americans. ``We're segregating people for elections and that goes against every principle of civil rights.''
Moon and Smith are receiving assistance from the Campaign for a Color Blind America, a Houston-based organization that has raised money for lawsuits in at least six states.
``The 3rd District is a clear racial gerrymander,'' said Katsurinis. He noted that the district was drawn to include 61 percent of the blacks in Norfolk, 64 percent in Portsmouth, 76 percent in Hampton, 85 percent in Newport News, 73 percent in Henrico County, 74 percent in Petersburg and 95 percent in Richmond.
In contrast, a vast majority of whites in each locality - including 87 percent in Norfolk and Portsmouth - were placed in other congressional districts. Eleven of the 17 cities counties comprising the 3rd district were split by racial populations.
``If race wasn't the predominant factor, how else can you explain those numbers?'' Katsurinis said.
Deputy Attorney General Francis Ferguson said the legislature was addressing ``a compelling state interest'' in creating a majority black district. He said the U.S. Justice Department - until recently counteracted by the Supreme Court - had long interpreted federal law as demanding that minority districts be created whenever possible.
Even so, Ferguson will argue that race was not the predominant factor in drawing the districts. ``It was one of many factors at the time,'' he said.
At least as important to the legislature, Ferguson said, was protecting several incumbent congressmen with safe districts.
The plaintiffs finished their case Wednesday, with the testimony of two expert witnesses and Del. John Watkins, R-Chesterfield County, who helped draw the congressional district in question.
To win the case, they must prove that race was the ``predominant'' factor in the General Assemply's creation of the district and that race is not a legitimate criterion.
The state and parties who intervened in the case - including the ACLU and the NAACP - begin presenting their case today.
The three federal judges repeatedly chastised lawyers on both sides for bickering and for straying into irrelevant areas, prolonging what was supposed to be less than a two-day hearing.
``I wish we'd get to the meat of this case,'' U.S. District Judge Robert Merhige of Richmond said as the day dragged on. ``I feel like I've been sidewinded.''
Scott and Douglas Wilder, the governor when the district was created, have refused to testify, claiming executive privilege. The same right has been extended to members of the General Assembly.
Several experts watching the case say privately that the state may have a hard time prevailing, given the consistency of recent high court decisions restricting the rules for creating minority districts.
The three-judge panel has not set a timetable for ruling, but is expected to render an opinion before the Nov. 5 congressional elections.
The NAACP, along with other civil rights groups, has argued that the rulings endanger success that minorities have had in winning congressional district seats over the past 14 years. ``If this continues, the Congressional Black Caucus will be able to meet in the back seat of a taxicab,'' said Theodore Shaw of the NAACP Legal Defense and Educational Fund.
Scott declined to comment on the suit recently. ``I'm concerned that anything I say publicly could be used as evidence in the trial,'' he said.
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