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Jewish World Review May 1, 2001 / 9 Iyar, 5761

Jack Kemp

Jack Kemp
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Consumer Reports

Supreme Court makes racial profiling the law of the land --
PRESIDENT George W. Bush says unequivocally, "Racial profiling is wrong and we will end it in America." Don't look now, Mr. President, but the Supreme Court just made racial profiling permissible when it comes to drawing congressional districts.

I was astounded to read about the Supreme Court's decision in Hunt vs. Cromartie. In a split decision, the court said that racially gerrymandering a congressional district is acceptable if it's the legislature's intent to create a "safe democratic district." The court emphasized the fact that the black community overwhelmingly votes Democratic between 95 percent and 97 percent of the time and is much less likely than white Democrats to "cross over" and vote for Republicans. If this isn't racial profiling, then what is?

The Supreme Court overturned a lower court ruling, which held that the North Carolina legislature had violated the Equal Protection Clause of the Constitution by using race as a predominant factor in drawing the boundaries of the 12th Congressional District. By doing so, the court made it permissible for legislatures to separate voters based on the color of their skin.

What would happen if bankers rather than legislators drew lines on a map in this fashion and circumscribed an irregular-looking geographical enclave in which the bank would not make as many loans as it does in the surrounding areas? And what if that enclave just happened to comprise a disproportionately large number of African-American residents? The result would be considered to have an unacceptable "disparate impact" on the black residents.

Under the Community Reinvestment Act, the perimeter of such an enclave would be treated as de facto "redlining" and considered prima facie evidence of unconstitutional racial discrimination in the bank's lending practices. Courts assuredly would reject a defense by the bank that it is simply an unfortunate coincidence that a disproportionate number of African-Americans happen to live inside the enclave.

However, in Hunt vs. Cromartie, the court's majority essentially employed similar reasoning to justify the existence of "black districts" and in the process legitimized what can only be called racial political branding. The majority opinion argued that by virtue of the fact the black community votes overwhelmingly Democratic and crosses over to Republican candidates far less than white Democrats do, "a legislature trying to secure a safe Democratic seat by placing reliable Democratic precincts within a district may end up with a district containing more heavily African-American precincts for political, not racial, reasons."

Unfortunately, some Republican and Democratic party officials view the court's decision as an opportunity to further their electoral goals. That should be particularly disturbing for conservative Republicans, who long have argued that principle should trump politics, especially when it comes to race. By placing politics above principle in this way, both parties would further Balkanize the country along racial lines.

Finally, the court held that "Because North Carolina's African-American voters are overwhelmingly Democratic voters, one cannot easily distinguish a legislative effort to create a majority African-American district from a legislative effort to create a safely Democratic district." Can you imagine the political fallout if this case were about racial profiling by police rather than gerrymandering congressional districts by state legislators?

In effect, the Supreme Court has de jure resanctioned segregation simply because it is difficult to distinguish the race component from the political component due to the high degree of correlation between the two. Therefore, herding black voters into Democratic political ghettos is fine with the court, so long as the legislature can point to other factors (e.g., political and geographical) as an excuse for doing so. How fair is that to black Republicans and white Democrats who are effectively disenfranchised by having their votes diluted out of existence?

The Supreme Court should be careful of the precedent they are setting. By substituting their personal considerations about the proper outcome of the case in place of judicial review, they are paving the way toward eradicating the spirit of the Equal Protection Clause of the 14th Amendment. A word of caution to Democratic and Republican party officials who would exploit the court's decision because it happens to favor their short-term political strategies: The law is a two-edged sword. The facts may be on your side today, but the precedent created here may work against you tomorrow, as it did a century and a half ago, when blacks voted Republican because it was the party of Abraham Lincoln.

Jack Kemp is co-director of Empower America and Distinguished Fellow of the Competitive Enterprise Institute. Comment by clicking here.


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