Snakes Or Ladders !

By DAVID VAN BIEMA

There can be no doubt as to what sort of beast North Carolina's 12th District is. It ambles crookedly from the textile mills of Gastonia to the skyscrapered banking district of Charlotte, through Lexington's furniture factories, picking up a voter or 10 on its way between Greensboro's downtown and Burlington's outlet malls; onward, ever onward, until it comes to rest 160 miles later among the black neighborhoods of Durham. It is narrow, as narrow in some spots as one lane of the I-85 Interstate highway. Its friends call it "a string of pearls." Most people settle for "snake" or "worm." But what it is, obviously and manifestly, is a gerrymander.

But it is a noble gerrymander, whose existence has given North Carolina one of its first black members of Congress in this century. At least that was the assumption until last week, when a divided Supreme Court declared that the creature could well be unconstitutional. Justice Sandra Day O'Connor, writing for a 5-to-4 majority, not only swatted the squiggly district; she moved on to question the mechanism that created it, an important part of the Voting Rights Act of 1965. Her ruling reopened a national debate on whether drawing congressional districts along racial lines is a laudable way to ensure a ladder for shut-out minorities -- or a step toward a dangerous Balkanization of American politics.

The phrase gerrymander, coined in the early 1800s to describe a salamander- shaped district engineered by Massachusetts Governor Elbridge Gerry, originally referred to an amphibian of convenience, the creature of whichever self-serving pol was carving up the turf. Such shenanigans have generally been deemed dubious because American democracy is based on the premise that legislators are elected to represent geographic regions and communities -- diverse constituencies that share sewer systems and schools and workplaces -- rather than a specific ethnic group, economic class or partisan faction. Circles and squares were fine; snakes and salamanders and inkblots tended to be perversions committed for political gain.

It took the Voting Rights Act to suggest the possibility of a "good" gerrymander. The act's 1982 revision and related court rulings required states with histories of racial discrimination to draw up districts where minority candidates would have a viable chance of being elected. Resulting jurisdictions with built-in black majorities came to be called "majority- minority" districts. More than a dozen new majority-minority seats were born in the South. Because of the redistricting based on the 1990 census, the number of black and Hispanic representatives in Congress rose from 36 to a politically potent 56 last year.

Many of the new districts, created with the help of computers, looked strange but possessed some geographic integrity. Not so the North Carolina 12th. The meandering serpent represents not just an attempt to concentrate black voters but also a bit of traditional gerrymandering, as the Democratic state legislature strove to avoid siphoning away too many black Democrats from incumbents in adjoining districts. The resulting line segment cleaves so closely to the Interstate that state representative Mickey Michaux, who is black, jokes, "You could drive down I-85 with both doors open and kill everybody in the district." Alive and voting last year, they put Mel Watt, a black Democrat, in Congress.

It was the grotesque shape of the 12th District that most offended the Supreme Court's majority. "Appearances do matter," Justice O'Connor wrote, praising "compactness, contiguity, and respect for political subdivisions." And if the court had limited itself to a slap at the aesthetic excess of one bizarre district, the furor would have been minimal. Instead, however, it questioned the entire premise of racially motivated gerrymandering. The five white voters who brought the case, O'Connor wrote, were properly offended by a redistricting that "can be viewed only as an effort to segregate the races for purposes of voting." She warned that "racial gerrymandering, even for remedial purposes, may Balkanize us into competing racial factions." Continuing to spin the globe in search of metaphors, she added, "A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid."

O'Connor granted that "race-conscious state decision making" should not be impermissible "in all circumstances." But she suggested that if racial considerations were a district's only reason for being, the damage done to the district's white voters under the Constitution's equal-protection clause might outweigh any good. The court remanded the case to the North Carolina district court for "close scrutiny" to determine whether a "compelling governmental interest" was served that would outweigh the injustice.

As liberal circles erupted in protest, other gerrymanders underwent existentialist spasms. Of these, the most endangered may be the Louisiana Fourth. Says lawyer Paul Hurd, who represents a group of voters who have challenged the district in federal court: "If you look up bizarre in Webster's, you'd find a picture of this district." Four hundred miles long, and only 80 ft. wide at its narrowest, it loops from the state's extreme northwest corner along its northern border, then sends several fingers far south in search of the minority vote. Cleo Fields, the Democrat who won the district in 1992 and is now Washington's youngest Congressman, notes that his voters have more than color in common; they have poverty too, and are a valid constituency. But the Fourth's challengers see it as the product of an unholy compromise between blacks and Republicans in the state legislature, benefiting both at the expense of white Democratic incumbents. A three-judge panel of a federal district court in Shreveport heard the case in August, but delayed its decision -- perhaps awaiting last week's high-court ruling.

Congresswoman Cynthia McKinney of Georgia makes a fierce defense of her 11th District, whose 250-mile length includes middle-class black suburbs in south DeKalb County, central Georgia's farms and the inner cities of Savannah and Augusta. McKinney does not claim that her constituents' needs are of a piece; she says that with seats on both the House's Foreign Affairs and Agriculture committees, she can look out for export as well as farm policy, and "pull urban, suburban and rural together." She hints that the fact that the district unites the black minority should be sufficient: of those who would use the high-court decision to challenge her, she says, "Some of us in Georgia are still fighting the Civil War."

Back in North Carolina, there are people who believe that the now infamous 12th will clear O'Connor's test of "close scrutiny" when the case comes home. Shape notwithstanding, it is the state's only urban district: 80% of its constituents live in towns of more than 20,000. Ted Arrington, a political science professor at the University of North Carolina-Charlotte, notes of its voters, "They have the same kind of neighborhoods -- read decaying; they have , the same kind of education problems -- read poor schools; and the same economic concerns -- read no jobs. These areas do have an enormous commonality of interests."

Eventually, as more challenges to oddly shaped districts accrue and are appealed to the Supreme Court, it may be possible to know whether O'Connor, as the liberals fear, was really preparing the ground for an all-out attack on racially motivated redistricting. Certainly her decision comes at a moment when traditional conservative complaints about majority-minority districting are being joined by voices on the left. None other than Lani Guinier, Clinton's discarded nominee for assistant Attorney General, wrote that they may merely serve the end of "isolating black constituents from the white majority, from other blacks who do not reside in the district and from potential legislative allies." Says Carol Swain, a political science professor at Princeton: "The court made the right decision for the wrong reasons."

Both supporters and opponents of O'Connor's decision see it as consistent with the conservative conception of a "color-blind" America, one in which, if the state treats everybody equally, any remnants of the historical inequality will eventually wither away. This view of social justice stands in stark opposition to the liberal assumption that inequality is so bad that the only realistic remedy is to occasionally reach in and favor minorities. By such lights, the Balkanization that O'Connor fears has actually been in place for more than a hundred years; her worries about racial gerrymandering, suggests Dayna Cunningham of the NAACP Legal Defense and Education Fund, are idyllic, "based on a view of race and politics in this country that has no grounding in reality."

No one likes gerrymandering, even in this day and age. But some see it as a medicine made necessary by generations of institutional racism. If it were eliminated, what would replace it? Perhaps nothing would work just fine, as the conservatives hope. Perhaps some experimentation is in order involving the election of blacks to at-large seats through systems of "cumulative" or "limited" voting. Yet the political theory is knotty, and the surrounding sensitivities raw: it was grapplings along precisely these lines that a month ago crippled Guinier's public career.

With reporting by Wendy Cole/New York and Michael Riley/Atlanta