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September 20th, 2017

Insight

Make redistricting better by making it color-blind

Jeff Jacoby

By Jeff Jacoby

Published Oct. 22, 2015

 Make redistricting better by making it color-blind
In a nation that guarantees equal protection for all, legislative mapmakers should be absolutely barred from considering voters' race or party registration when crafting electoral districts.

Hillary Clinton played the race card in Alabama last week, telling Democrats that plans to close 31 underused satellite offices of the state's Department of Motor Vehicles are evidence of Republican racism. The closings were compelled by spending cuts enacted by a GOP-majority legislature facing a budget crisis, but Clinton slammed it as "a blast from the Jim Crow past," since most of the branch offices are in predominantly black rural towns and Alabamans have to show photo identification when they vote.

"Fifty years after Rosa Parks sat and Dr. Martin Luther King Jr. marched and John Lewis bled," Clinton said, "it is hard to believe we are back having this same debate about whether or not every American gets a chance to vote."

It's a scurrilous charge. No one is having that "debate," certainly not in Alabama, which has more black elected officials than nearly every other state and where black voter turnout has climbed to record highs. The DMV offices in question process less than five percent of all driver's license transactions. The "Jim Crow past" — part of the Democratic Party's ugly racial legacy — is not being revived, not in Alabama or anywhere else. It is dishonest demagoguery to pretend otherwise.

But dishonesty and demagoguery proliferate when political power is at stake. And far too much political power is entangled in a voting-rights system that continues to sort voters by race long after black disenfranchisement has disappeared.

Massachusetts was reminded last week of former House Speaker Thomas Finneran's false testimony in a 2003 lawsuit, which claimed that a legislative redistricting plan discriminated against "black-preferred candidates" in Boston while protecting white incumbents. Finneran was convicted, disbarred, and stripped of his state pension, which a municipal judge has now restored. But the underlying travesty had little to do with Finneran, and everything to do with color-conscious district-drawing.

The original goal of the 1965 Voting Rights Act, the noted legal scholar Richard Epstein observes in a recent essay, "was to increase black participation to the level of white participation." That target has not only been met, but surpassed: Black voter turnout rates now exceed white turnout rates. To insist in 2015 that states have an obligation to deliberately maximize black political influence through redistricting is anachronistic at best, and condescendingly self-defeating at worst.

In 1960, after the Alabama legislature redrew Tuskegee's borders in order to exclude black voters from the municipal voting rolls, a unanimous Supreme Court ruled that such blatant racial manipulation was a violation of the Fifteenth Amendment. But the court later abandoned that principled stand. Now it actively encourages such race-based mapmaking, leading to tortured litigation over the details of packing X number of districts with Y percentage of minority voters — and generating no end of poisonous rhetoric about reviving "the Jim Crow past" or betraying the cause for which King gave his life.

Voting-rights law has gone off the rails, argues Epstein, and the longer the Supreme Court tolerates race-conscious rules in drawing district lines, the worse the political damage will get. The old rule — voters' skin color may not be considered when electoral districts are drawn — is the better rule, less polarizing and more decent. The Fourteenth and Fifteenth Amendments should be read to enjoin strict colorblindness when state legislatures make their maps.

The means to that end is not rocket science. While continuing to require that districts be roughly equal in population, the court should require as well that they be geometrically compact, and that they take no account of voters' party registration or voting history. The parameters couldn't be simpler; a computer could do the job. Incumbent politicians might lose the ability to choose their constituents. But voters would be equal at last, exercising their franchise under a Constitution that is color-blind, and neither knows nor tolerates classes among citizens.

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