Redistricting Divides U.S. High Court; Justices Wrestle with Competing Interpretations of Voting Rights Act

April 30, 2003

BYLINE: Jonathan Ringel, Special to the Fulton County Daily Report

WASHINGTON-The U.S. Supreme Court, which decided two Georgia redistricting cases in the 1990s by 5-4 votes, appeared split again on Tuesday as the justices wrestled with competing interpretations of the Voting Rights Act.

The issue before the high court is whether a 2001 plan passed by the Democrat-controlled General Assembly violated the 1965 law by reducing the black population in three Senate districts from safe majorities to about 50 percent.

At stake is the way Democrats in Georgia, and, by extension, in other Southern states, have maintained their legislative strength by spreading black voters across districts.

Last year, a three-judge federal court ruled in a 2-1 decision that the reduction of black voters in Georgia Senate Districts 2, 12 and 26 was illegal. The controlling decision said the Voting Rights Act did not allow states to change districts with a “robust” chance of blacks’ electing their candidates of choice to ones with only a “reasonable” or “fair” chance.

Lawyers Face Sharp Challenges

In lively oral arguments on Tuesday, lawyers for the state faced lawyers for the U.S. Justice Department and black voters claiming the state plan discriminated against them. In an amicus brief, groups such as the American Civil Liberties Union and the NAACP Legal Defense and Education Fund Inc. sided with the Justice Department, arguing against the state plan. David F. Walbert, a special assistant attorney general representing Georgia, opened by saying that the federal panel erred by forcing the state to keep districts, in effect, segregated.

“Balkanization is not the way to go,” said Walbert, a veteran voting rights lawyer who also argued one of the 1990s cases for Georgia. He is with Parks, Chesin & Walbert. Walbert ran into sharp challenges from some of the Court’s more liberal justices-David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Breyer sounded especially skeptical toward Walbert’s contention that the state had not run afoul of the Supreme Court precedent against “retrogression”-or dilution of improved black voting strength-when it reduced the black population in the three Senate districts.

“Why is that not backsliding, retrogression” Breyer asked. Walbert countered that even the lower court majority had conceded that simply reducing the black population in a particular district was not necessarily retrogression.

Quoting the late Justice Thurgood Marshall, the civil rights pioneer and the first black justice on the high court, Walbert pressed on, arguing that the Voting Rights Act required only that minorities have an equal-not a safe-opportunity to elect candidates of their choice.

But Ginsburg, a former ACLU lawyer, suggested Walbert was mixing up the Supreme Court’s precedents on the Voting Rights Act. Her comment echoed a point made in the Justice Department’s brief: that Section 2 of the Voting Rights Act requires states to offer equal voting opportunities, but Section 5-the section controlling this case-disallows retrogression.

Justice Sandra Day O’Connor-considered a swing vote in race relations cases-followed Ginsburg’s track.

“We really haven’t equated Section 2 challenges with Section 5 challenges,” O’Connor said. “This case boils down to the question: ‘What amounts to retrogression’”

In the two 1990s cases, O’Connor joined the Court’s conservatives-Chief Justice William H. Rehnquist, Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas-to form majorities against arguments that maps should maximize black voting strength.

Souter explored a way to limit the impact of this case on the Voting Rights Act, perhaps sensing a similar 5-4 vote over the dissent of the more liberal wing of the Court, which includes himself, Ginsburg, Breyer and Justice John Paul Stevens.

Why wouldn’t it be acceptable, Souter asked Walbert, if the Court simply affirmed the lower court but left open the major issues pending Congress’ debates over the act in a few years. Section 5 is set to expire in 2007 but has been renewed regularly by Congress, the last time in 1982.

With all due respect, Walbert said, “That’s punting” the Court’s obligations, especially since Congress has never refused to renew Section 5.

“Maybe if we make it bad enough they’ll repeal it,” quipped Scalia, foreshadowing problems he would raise when Malcolm L. Stewart, assistant to the U.S. Solicitor General, argued for the federal government. Scalia first took issue with the Court’s past interpretations of the Voting Rights Act, noting that neither the word “retrogression” nor “redistricting” appears in them.

Then he called “implausible” the government’s argument that reducing the black population from having a certainty of electing their candidate to only a “reasonable” chance violated the law. Kennedy later chimed in that “in life nothing is certain.” “You’re saying the state is essentially frozen,” Kennedy told Stewart, because the state essentially could not change black majority districts.

The Best Interests of Blacks

E. Marshall Braden, a Washington lawyer representing the black voters, followed Stewart and was also the focus of tough questioning by Scalia. Scalia pointed out that virtually all of the state’s black legislators took the opposite view as Braden’s clients and supported the plan at issue. Braden, whose representation is partly funded by the Georgia Republican Party, said the black legislators were Democrats who were merely trying to protect their incumbency.

“I find it hard to believe they didn’t have the interests of blacks in mind,” Scalia responded. Scalia added that blacks have “overwhelmingly” supported Democrats, so while they may not have a chance to elect blacks in some districts, they still may vote for their choice.

Braden said Scalia was wrong because the Voting Rights Act was passed to maximize blacks’ political strength, not Democrats’ strength. When Walbert returned, he focused on how 43 out of 45 black legislators had supported the Georgia plan and asked whether it was conceivable they would do so if the plan hurt blacks. The state’s brief said that in the 2001 plan the number of state legislative districts with a majority black voting-age population increased from 49 to 52.

Baker v. Perdue

The last question asked came from Ginsburg, who wanted to know the status of a dispute between Gov. George E. “Sonny” Perdue III and Attorney General Thurbert E. Baker. Soon after taking office in January, Perdue, a Republican, ordered Baker, a Democrat, to dismiss the redistricting appeal. Baker argued he had final authority to make the state’s legal decisions and refused. A Fulton County judge ruled for Baker, and the Georgia Supreme.

Court is Set to Hear the Case on May 6

Walbert told Ginsburg the Georgia high court was scheduled to hear the case next week and they expected a decision soon after that. If the Georgia court rules for Perdue, the state would apparently have time to dismiss its appeal before the U.S. justices issue a decision on the voting rights matter, called Georgia v. Ashcroft, No. 02-182.

Baker and Troutman Sanders partner Mark H. Cohen, also a special assistant AG, sat with Walbert at the arguments. Stewart and Braden were accompanied by Anne W. Lewis of Atlanta’s Strickland Brockington Lewis, which launched the representation of the black voters.

Deputy Solicitor General Paul D. Clement, a former King & Spalding partner, also sat with Stewart, Braden and Lewis. Thomas, a Georgia native who is the Court’s only black member, asked no questions of the lawyers, as is his custom. But several times he did chat with Breyer, who sits to Thomas’ left.