Vol. 13 No. 1 (January2003)
RACE AND REDISTRICTING: THE SHAW-CROMARTIE CASES by Tinsley E. Yarbrough. Lawrence, Kansas: University of Kansas Press, 2002. 240pp. Cloth $29.95. ISBN: 0-7006-1218-1. Paper $14.95. ISBN: 0-7006-1219-X.
Reviewed by Keith J. Bybee, Maxwell School of Citizenship and Public Affairs, Syracuse University. Email: kjbybee@maxwell.syr.edu
RACE AND REDISTRICTING: THE SHAW-CROMARTIE CASES, by Tinsley E. Yarbrough, is a solid addition to the Landmark Law Cases Series produced by the University of Kansas Press. Like many of the titles in the Kansas series, Yarbrough’s book conveys a great deal of historical detail within a clear narrative framework. The end result is a book that not only will provide students with a good introduction to a complex area of constitutional litigation, but also will furnish scholars with new information about key actors.
Yarbrough focuses on the race-conscious redistricting carried out in North Carolina during the 1990s. His story begins in 1991, when the North Carolina legislature adopted a congressional redistricting plan with one majority-minority district. Exercising its pre-clearance powers under the Voting Rights Act of 1965, the Department of Justice (DOJ) subsequently rejected the 1991 plan, indicating that the legislature should have created an additional majority-minority district in the south-central part of the state. In early 1992, the North Carolina legislature re-drew congressional districts in an effort to meet the DOJ objections. Although the Democratic majority in the legislature ultimately produced a plan with two minority-majority districts, it did not place the second district where the DOJ had suggested. The creation of an additional majority-minority district in the south-central section of the state would have substantially weakened the electoral base of a veteran Democratic incumbent. In order to avoid this problem, the Democratic majority placed the second majority-minority district in the state’s northern piedmont crescent, running along Interstate 85 from Durham to Charlotte.
The DOJ approved the new plan, but the North Carolina Republican Party filed suit, claiming that the new plan was an unconstitutional partisan gerrymander. A three-judge District Court dismissed the Republican suit and the United States Supreme Court refused to take up an appeal. In the fall of 1992, elections were held under the new redistricting plan and African-American candidates were elected from both majority-minority districts.
The saga of North Carolina’s redistricting might well have ended there had not Robinson Everett believed that the real problem with the revised redistricting plan was not partisan gerrymandering, but racial gerrymandering. Everett, a Duke law professor and Durham attorney, filed suit in the same month that the Republicans lost their partisan gerrymandering case. Everett not only acted as chief counsel and plaintiff in his suit, but also enlisted one of his sons, a secretary from his firm, and a Duke law school colleague to act as co-plaintiffs. Over the next nine years, Everett engaged in more or less continuous litigation. Although he did not win every decision, Everett did manage to argue four cases before the United States Supreme Court; to force the North Carolina legislature to redistrict; and to play a role in the development of a new legal standard, whereby redistricting plans predominately based on race are held to be unconstitutional unless they are narrowly tailored to meet a compelling interest.
Yarbrough provides a thorough account of Everett’s legal crusade. Along the way, Yarbrough briefly summarizes the history of minority disenfranchisement in the United States, as well as the development of the Voting Rights Act and the Supreme Court’s involvement in the politics of minority representation. The attention paid to such topics places Yarbrough’s tale in context. Yarbrough does not offer a detailed review of the vast scholarly literature that has grown up around race-conscious redistricting. But such a literature review would not have been appropriate for Yarbrough’s project. And, in any event, the background information that Yarbrough does provide (along with a brief bibliographic note at the end of the book) is sufficient to give readers a general sense of the broader debate.
Perhaps the most striking feature of Yarbrough’s book is the evenhandedness with which he relates his story. Yarbrough’s approach is almost journalistic: he rarely ventures a direct opinion of his own, develops a sustained argument, or engages in overt analysis. Instead, Yarbrough allows his sources to tell the story for him and ensures balance by pairing conflicting quotes from different parties.
Yarbrough’s commitment to balance is in many ways a good thing. The debate over race-conscious redistricting is shot through with one-sided, vitriolic arguments that often do more to obscure than to illuminate the issues. Yarbrough’s balanced approach is a welcome change of pace. Rather than attempting to vindicate one side and vanquish the other, Yarbrough shows how differently the two sides see the same set of facts. For instance, having detailed the arguments made by an expert witness in district court, Yarbrough simply relates the radically divergent views that contending attorneys had about the witness’s credibility (p.102).
Yarbrough’s balanced approach also allows him to illustrate the fluctuation of political interests. Republicans tend to reject majority-minority districts and Democrats tend to accept them. But this partisan split can vary according to circumstances. Yarbrough’s account traces the changes in political terrain. By faithfully reporting the full testimony of witnesses, for example, Yarbrough shows how partisans alter their estimation of redistricting schemes to suit their shifting political objectives (see pp.98-100).
Finally, Yarbrough’s “I report, you decide” approach, makes his book useful for undergraduate courses. By canvassing the range of arguments presented by litigants in the courtroom, Yarbrough offers plenty of alternatives for students to debate in class or to assess in essays.
Having said all this, it is important to note that Yarbrough’s approach also has its difficulties. First, the commitment to balance only works when there are indeed different perspectives that can be balanced off against one another. In the absence of quotations illustrating conflicting perspectives, Yarbrough sometimes maintains a kind of balance by putting forward an alternative perspective himself (see, for example, Yarbrough’s discussion of Melvin Shimm’s politics on p.32). But Yarbrough does not always supply the missing perspective. For instance, he draws heavily on the reflections and remarks of Robinson Everett, and does not consistently make efforts to set Everett’s comments off against the comments of his opponents or to suggest that Everett’s views have limits. The result is that Everett’s assessment of an event sometimes stands as the only assessment of the event that Yarbrough presents.
At other points, the problem is not that Yarbrough offers an imperfect balance, but that he settles for balance when direct argument would be more fruitful. In his discussion of the various district court trials, for example, Yarbrough conscientiously documents contending claims and testimony without offering judgments about the relative merits of any one position. Having completed his review, Yarbrough then notes that the ultimate decision in each district court trial closely tracked political attitude—district judges appointed by Democrats always resisted the idea that North Carolina’s districts were unconstitutionally race-based; while district judges appointed by Republicans always reached the opposite conclusion. This kind of attitudinal analysis provides a venerable way to analyze judicial outcomes, but in the context of Yarbrough’s book it raises a problematic question: if judicial partisanship is the main determinant of judicial outcomes, why does Yarbrough spill so much ink detailing the arguments made by legal counsel and in amicus briefs? Yarbrough’s meticulous balancing of arguments, giving many pages to each side of the controversy, seems to be beside the point if district court judges are simply voting their pre-existing political preferences.
In this vein, Yarbrough notes that the attorneys opposing Robinson Everett widely believed Everett’s success had very little to do with the quality of his arguments. One lawyer reportedly said, “Robinson is not the best trial lawyer, and Robinson is not the best appellate lawyer. But the force was with him” (p.165). The views of opposing lawyers should surely be taken with many grains of salt, but when coupled with the consistent partisan split at the district court level, the observations of opposing attorneys suggest that the extensive attention Yarbrough pays to actual argumentation is in need of some justification. Indeed, there is a sizable literature about the role of arguments in judicial decisionmaking on which Yarbrough could draw. Were Yarbrough to engage this literature, I believe that his account would be more persuasive.
Yarbrough closes his book by predicting that race-conscious redistricting will be with us for some time. The prohibition of “predominantly racial” gerrymandering clearly limits some uses of race in the apportionment process, but nonetheless allows race to be used. And, in practice, the permitted use of race may well be quite broad. As Yarbrough writes, the traditional judicial deference to legislative redistricting decisions, in conjunction with “the legislative ingenuity in crafting nonracial as well as racial reasons for adopting majority-minority districts,” suggests that “courts are unlikely to find many post-Cromartie redistricting plans ‘predominantly’ racial and constitutionally invalid” (p.198).
Readers will have different views about Yarbrough’s prediction (I happen to think that he is correct). But whatever readers think about the future of race conscious redistricting, they will all surely agree that Yarbrough has made a valuable contribution to the study of the topic.
************************************************************************
Copyright 2003 by the author, Keith J. Bybee