Court Breaks Promise of Equal Protection
BY MAHA S. ZAKI
This month, the South Carolina federal court unveiled its new Senate districts. The plan eliminated majority-black districts which it found violated the constitutional rights of white voters -- effectively limiting black representation in the state Senate. We've been here before.
Before Reconstruction ended at the turn of the last century, 38 blacks had served in the South Carolina Senate during a fleeting 20-year respite from absolute white supremacy. By 1888, no blacks remained in the Senate, even though they constituted a majority of the state's population.
The state Senate maintained complete white homogeneity longer than any other legislative body in the South. Nearly a century passed before another black member, I. DeQuincey Newman, graced the halls of the state's upper chamber, in 1983.
Today, on the eve of the new millennium, eight of 46 state senators are black, even though blacks make up 30 percent of the state's population. Not one of these black senators was elected from a majority-white district, although several white senators were elected from majority-black districts.
the South Carolina Senate would
look much as it did in 1888.
This month, a three-judge federal court explained why: a huge majority of whites in South Carolina still will not vote for black candidates, no matter their qualifications (a phenomenon commonly referred to as polarized voting). Without majority-black districts, the South Carolina Senate would look much as it did in 1888.
In 1965, Congress passed the Voting Rights Act, committing the nation to end -- as has been described by the U.S. Supreme Court -- "an insidious and pervasive evil which had been perpetuated [against blacks]... through unremitting and ingenious defiance" of the promise for equal protection of law.
Less than 30 years later, in 1993 (ironically, the 10-year anniversary of Newman's historic election to the Senate), the Supreme Court decided Shaw v. Reno. Although the Court cloaked itself in the language of "equal protection," "color blindness" and "racial neutrality," what the Court did was create (or rather invent) a new and "distinct" type of constitutional lawsuit.
This case permitted white voters to challenge the constitutionality of majority-black districts that appear "irregular" in shape.
The Supreme Court had never before found that the Constitution required regularly shaped majority-white districts. Indeed, no federal court decision questions the constitutionality of a voting district made to appear serpentine by a white politician's desire to reach out and include a summer home three counties over or to surgically dissect a city for the sole purpose of excluding political rivals.
With a blind eye towards history, the Court ruled that the deliberate creation of "irregular" majority-black districts "bear[s] an uncomfortable resemblance to political apartheid." The use of the term "apartheid" was never previously used by the Court in its numerous decisions blessing and bolstering slavery and Jim Crow.
Acting on these recent Supreme Court dictates, a South Carolina federal court last fall declared unconstitutional two majority-black Senate districts. While whites continue to be overrepresented in the Senate, the court nonetheless ordered immediate relief for the "aggrieved" white voters living in these majority-black districts.
The court moved with lightning speed to serve white voters, providing no remedy, no guidance, no recognition of black voters' long battle against white polarization and stereotyping. The promise of equal protection of the laws to black South Carolinians was broken. Again.
Maha S. Zaki is an attorney with the American Civil Liberties Union in Atlanta, and has worked on a number of South Carolina cases, including the suit against the state to implement the motor voter law. She is currently defending the redistricting case of U.S. Rep. James Clyburn, scheduled to go to trial in September.