PREPARED STATEMENT OF ROBINSON O. EVERETT TO SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY

U.S. HOUSE OF REPRESENTATIVES AT HEARING ON H.R. 1173

THURSDAY, SEPTEMBER 23, 1999

Mr. Chairman and Members of the Subcommittee; I am Robinson O. Everett, and I have not received any federal contracts or grants. As reflected in the curriculum vitae attached to my statement, I have served more than four decades on the Duke Law School faculty, was for more than a decade the chief judge of the Court of Military Appeals (now the Court of Appeals for the Armed Forces), served at one time as a counsel for Senator Sam Ervin's Subcommittee on Constitutional Rights of the Senate Judiciary Committee, and have been a lawyer since 1950. I am here as a witness today because in 1966, I successfully attacked in federal district court a politically gerrymandered congressional redistricting plan and then in 1992 - both as a plaintiff and counsel for the plaintiffs - filed the suit which became known as Shaw v. Reno. In that case the Supreme Court established that racially gerrymandered congressional redistricting plans are subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment.

The legal battle I began seven years ago to wipe out racial gerrymanders in North Carolina still goes on. Indeed I must return to North Carolina this afternoon to take a deposition in preparation for a trial in early November as to the constitutionality of a redistricting plan enacted by our general assembly in 1997 to replace the flagrantly unconstitutional 1992 plan. I have also attached to my statement a paper that I recently presented in Atlanta at the annual meeting of the American Bar Association. Therein I chronicle what has taken place in North Carolina on the redistricting front, and I suggest a possible remedy for some of the problems. My redistricting experience has provided me some perspective for evaluating H.R. 1173.

Having been in a long legal struggle with those who seek to preserve the racially gerrymandered congressional districts from which Representatives Watt and Clayton were elected, I obviously have some difficulty in being objective about a bill of which they are principal sponsors. Hopefully I have overcome that obstacle enough to provide you some meaningful observations and warnings.

My principal concern is that H.R. 1173, if enacted into law, would create more problems than it would solve. In the first place, it undoubtedly would generate new uncertainty. Under the language of H.R. 1173, a state apparently would be free to have an at-large election wherein all its representatives might be elected from a single party. Such a result, if it occurred, could generate great dissatisfaction. For example, if California under its Democrat governor and legislature chose to conduct its congressional election in this way and then obtained a majority - or even a plurality - for an entire Democrat congressional slate, the resulting dissatisfaction on the part of Republicans in that state is easy to imagine.

Likewise, if my state, North Carolina, adopted such a plan and a Republican slate were elected to Congress, Democrats would be disheartened. Moreover, since in North Carolina over 95% of the African-Americans who register to vote register as Democrats and vote cohesively in the same manner, it would be unlikely that, if elected, a Republican slate would include a black candidate. In that event there might be complaints that the at-large plan violated the Voting Rights act of 1965. Indeed, in a state like North Carolina, where 40 counties are subject to preclearance under Section 5 of the Voting Rights Act, the Civil Rights Division might deny preclearance because of the possibility of retrogression from the current number of African-Americans who represent the state in Congress.

A partial solution might lie in some system of preferential voting like that used in a few cities in the United States and also used in some foreign countries. However, preferential voting may be difficult for many voters to understand. Also, it has the potential of encouraging third parties and splinter parties - a result distasteful to supporters of a two party system although favored by advocates of proportional representation. I must concede, however, that preferential voting would be far superior to racial gerrymandering as a means of facilitating minority representation.

If, instead of having a statewide at-large election of representatives, a state opted either only to have several multi-member districts or else a combination of single-member and multi-member districts, a new opportunity is created for racial and political gerrymandering. Having become somewhat cynical after my long battle in North Carolina, I anticipate that this new opportunity would be availed of in each state by whichever party controlled the legislature of that state. Moreover, if neither major party controlled the state legislature or if one party controlled but the governor was of a different party and had a veto power, a plan would probably be negotiated with little regard to the voters' interests. In creating each multi-member district, the question might arise of whether to use preferential voting in some form. This would raise the same issues I have already mentioned in regard to preferential voting if all the representatives were elected at-large.

Of course, creation of multi-member districts would reflect distrust for the rationale which led Congress decades ago to require single-member districts - a requirement later abandoned but reimposed in 1967. That rationale relies on the premise that it is desirable for a representative in Congress to be responsible for assuring that the needs of a defined group of people are made known to, and adequately considered in, the Congress. Conversely, the constituents in that representative's district are on notice as to who has a special responsibility to represent them, and they have a more meaningful opportunity for access to that person.

Consistent with that rationale some traditional redistricting principles have developed to better assure that the single-member districts will fulfill their intended purpose. Geographic compactness and contiguousness are among those principles; and their application facilitates communication between a representative and his or her constituents. Likewise the long-recognized principles of leaving intact the boundaries of existing political subdivisions and recognizing genuine communities of interest enhance participation by voters in the political process.

In my view, retaining single-member districts and enforcing traditional redistricting principles is today the best solution - rather than authorizing multi-member districts. While I realize that Representatives Watt and Clayton fear that this solution is inconsistent with assuring that a substantial number of African-Americans serve in Congress, I believe their fears are exaggerated. Indeed, the ability of Congressman Watt to win comfortably in a general election in a district in which the percentage of African-Americans within the total population has been reduced from well over 50% to about 35%, helps demonstrate that a majority-black district is not essential for electing a black representative. That success cannot be attributed only to his status as an incumbent. Instead it reflects increasing willingness of whites to "cross-over" and vote for qualified black candidates. Moreover, the "Packing" of blacks into majority-minority districts and thereby removing them from adjacent districts lessens the ability of African-Americans to influence elections in the adjacent districts.

My bottom line is that for Congress to allow use of other than single-member districts would do more harm than good. Instead of enacting H.R. 1173, I would urge Congress to restore the once-existing requirement that congressional districts be "compact;" and I mean "geographically compact," rather than "functionally compact." Also, it would be helpful for Congress to clarify that satisfying the preconditions of Thornburg v. Gingles for a majority or minority district, requires that it be possible to form a congressional district in which a geographically compact majority of the citizens of voting age population are African-Americans who vote cohesively. Finally, states should be encouraged in every way to establish non-partisan redistricting commissions to draw boundaries without regard to party, incumbency, or race, except as mandated by the Voting Rights Act. Such commissions, which in the next decade will be used in several states for reapportionment and redistricting, provide the best means for assuring fairness in the redistricting process.

Hopefully this statement will help you in evaluating H.R. 1173. My own conclusion is that it should not be enacted in its present form. Indeed, its enactment would tend to reinforce the mistrust , cynicism, and feeling of futility that many voters already have with respect to the elective process.

Robinson O. Everett Phone: (919) 613-7047

Fax: (919) 613-7231