Supreme Court justices appeared reluctant Tuesday to expand protections of a landmark voting rights law in a case from North Carolina.
Until recently, civil rights advocates pressed lawmakers and courts to draw electoral districts with African American majorities to help elect minority candidates.
But the creation of majority black districts across the South in the early 1990s that led to the election of more black Democrats also brought to office more white Republicans and fewer white Democrats.
So civil rights and Democratic leaders decided they would be better off with some districts in which African Americans, though not a majority, still were numerous enough to determine the outcome of elections with the help of small numbers of like-minded white voters.
Three weeks before Election Day, the Supreme Court confronted a case that asks how small minority populations can be and still elect the candidates they want for local offices and Congress in areas where votes tend to fall along racial lines.
In the case, the justices are being asked to extend a provision of the 1965 Voting Rights Act to protect districts in which, together, black and white Democrats can determine the outcome of elections.
“They help to diminish the amount of racial polarization over time, so that eventually we won't need to be looking at race at all in drawing district lines,” N.C. Solicitor General Christopher Browning told the court in defense of the districts.
The court appeared divided in a familiar fashion. The more conservative justices sounded reluctant to expand legal protections to these districts, while their more liberal colleagues seemed more willing.
Justice Anthony Kennedy appeared once again to hold the balance of power on the court.
And Kennedy appeared skeptical of the state's position. “What's the authority that says you must consider race in drawing the districts, assuming that you don't have an existing … minority-majority district?” Kennedy asked.
Last year, the N.C. Supreme Court applied a strict numerical-majority requirement and rejected the district. The appeal in the case, Bartlett v. Strickland, No. 07-689, was filed by N.C. Attorney General Roy Cooper and other state officials. They said that nothing in the text of the federal law, its purpose or the court's earlier cases mandated a numerical-majority requirement.
Several justices seemed to agree, saying or suggesting that a 50 percent requirement had the usual costs and benefits of what lawyers call “bright line rules.” They are easy to apply, but they can be arbitrary and inflexible.
The federal government, although it appeared in support of the residents of Pender County who had successfully challenged the district in question, said a 50 percent requirement was too rigid.
“The problem is once you go below what is at least in principle a 50 percent line, it's not clear … where one would ever stop,” Justice Department lawyer Daryl Joseffer said.
Unmentioned Tuesday was the upcoming presidential election in which, win or lose, a black candidate is certain to garner the votes of millions of whites.