BOSTON -- Seven federal judges wrestled with the ramifications of a Rhode Island redistricting case yesterday, peppering lawyers with questions of race, politics and legal precedent.
The lawsuit claims that new state Senate districts illegally dilute black voting power on Providence's South Side. And for more than an hour yesterday, the full 1st U.S. Circuit Court of Appeals heard arguments about whether there should be a trial to settle the matter.
The court did not issue an immediate decision, but yesterday's hearing showed that the judges are divided and struggling with the case.
"It's a difficult case," Chief Circuit Judge Michael Boudin said as the hearing concluded. "We will do our best with it."
Senate lawyers say no trial is necessary. It's well established, they say, that these types of suits can usually proceed only when a minority group makes up more than 50 percent of a district. In this case, the Senate map cut the black population of a South Side district from 26 percent to 21 percent.
The plaintiffs' lawyers say those percentages are only one factor to consider in determining whether black voters have the ability to elect the candidate of their choice. In this case, they note that the Senate's first and only black member, Charles D. Walton, won elections when his district was 26 percent black -- thanks to a predictable number of "crossover" votes.
The new Senate map created a district that pitted Walton against Juan M. Pichardo, who beat Walton in the 2002 Democratic primary and went on to become the state's first and only Hispanic senator.
Circuit Judge Bruce M. Selya, the only Rhode Islander on the court, noted that until yesterday, the plaintiffs had not claimed intentional discrimination in the Senate map. But Anita S. Earls, the plaintiffs' lead lawyer, made that claim during yesterday's arguments.
After the hearing, Earls said, "We think there is some evidence of intent to divide the black community between two Senate districts and that there is evidence Senator Walton was being treated differently from the other senators."
Earls said the plaintiffs were not bringing up a new civil-rights claim. Rather, she said the plaintiffs were highlighting the "tenuous" justifications behind the Senate plan. For example, she said, "We are saying there was no legitimate, non-racial reason to take the two high-rises out of Senator Walton's district."
After the hearing, the Senate's lead lawyer, John A. Tarantino, emphasized that the plaintiffs had not claimed intentional discrimination in their complaint, and he said they had even "disavowed" such a claim in their legal briefs.
"To bring it up now -- to me, it's impossible to respond to or defend against," Tarantino said. "It's shadowboxing."
Selya pressed Earls on whether a Voting Rights Act case can proceed if a district's minority population is less than 50 percent. Earls said such cases can proceed if minority groups have shown the ability to elect candidates of their choice.
Selya asked when such a case could ever be dismissed. "If a minority population was extremely small," Earls replied.
"You don't think 26 percent is extremely small?" Selya asked. "No, your honor," Earls said.
"So it's in the eye of the beholder?" Selya asked. "No, it's in the record of past ability to elect candidates," Earls said.
Circuit Judge Sandra L. Lynch jumped in, saying, "The factual history tells you there was an ability to elect."
Selya and Lynch differed sharply when a three-judge appellate panel voted 2 to 1 to reinstate the lawsuit, which had been dismissed by Rhode Island Chief U.S. District Judge Ernest C. Torres. With Selya dissenting, Senior Circuit Judge Norman H. Stahl joined Lynch in the majority opinion, and the case appeared to be heading back to Providence for a trial.
But then the Senate petitioned for a "rehearing" by the full court, and in a rare move, the 1st Circuit granted the request, wiping out the decision of the three-judge panel and setting up yesterday's hearing.
During the hearing, Stahl questioned Tarantino, saying, "You have a city with a heavy minority population, and only one minority is elected (to the Senate) in that city. Doesn't that say something about how you did this to minimize the minority vote?"
Tarantino said the Senate drew its district map so that four of the six Providence districts would be more than 50 percent minorities. And, he said, "There is no guarantee in the Voting Rights Act that a minority candidate is going to win."
Lynch noted that Tarantino was considering all minority groups as one -- "as if they don't have distinct interests." But Selya noted that it was "mathematically impossible to draw a majority African-American district."
Earls told the judges that Providence's population is now 45.8 percent white, 30 percent Hispanic, 12.7 percent black and 5.9 percent Asian.
Tarantino said the Voting Rights Act was meant to protect minorities -- not a "coalition of like-minded voters." But in a district that is 26 percent black, those voters would need another 24 percent in non-black crossover votes to ensure the election of their candidate, and that coalition would no longer represent "a distinctive minority vote," he said.
