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
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
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
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.