While racial gerrymandering of election districts is unconstitutional, race-conscious political gerrymandering is not.

That is the sensible message of the Supreme Court’s May 17 decision holding unanimously that the boundaries of a North Carolina congressional district had not been proven unconstitutional–not yet, at least–and sending the case back to a lower court for further proceedings.

Justice Clarence Thomas’ brief opinion (joined by four other Justices) in the case, Hunt vs. Cromartie, may help steer the Court’s history of conflicted and confusing jurisprudence in this area toward a coherent resting place.

It at least gives states a better road map on how to get through the decennial redistricting after next year’s census without running afoul of the courts. And it represents the clearest acknowledgment so far by the Court’s conservatives that the redistricting process cannot be made completely ”colorblind,” because the politicians who draw the lines cannot help but be aware of racial voting patterns.

In past decisions, Thomas and the four other conservative Justices have struck down the blatant racial gerrymandering that the Justice Department for years pressured states to adopt in order to create as many majority-black and majority-Hispanic districts as possible.

Now these five have joined the four more-liberal Justices in specifying that the Court will allow states to engage in political gerrymandering even when the results include heavily black or Hispanic districts.

The specific issue before the Justices was whether a three-judge lower court in Raleigh had been correct in awarding summary judgment, without hearing detailed evidence on the issue of motive, to white voter-plaintiffs who had challenged as an unconstitutional racial gerrymander the current version of North Carolina’s much-litigated 12th Congressional District, which is now 47 percent black.

The Court was unanimous in reversing the lower court and sending the case back, asking the lower court to take more evidence on whether the legislature’s primary motive had been to create a strong Democratic district (surrounded by Republican districts), as the state claimed, or to concentrate black voting strength, as the white plaintiffs argued.

While stressing that there was evidence of both a political and a racial motive, Justice Thomas spelled out the implications of earlier decisions that gerrymandering is unconstitutional only if race is the ”predominant” motive: ”A jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the state were conscious of that fact. . . . Evidence that blacks constitute even a supermajority in one congressional district while amounting to less than a plurality in a neighboring district will not, by itself, suffice to prove that a jurisdiction was motivated by race in drawing its district lines, when the evidence also shows a high correlation between race and party preference.”

The four more-liberal Justices, who have dissented from the earlier decisions holding that racial gerrymandering violates the Constitution, did not sign the Thomas opinion. Rather, they joined in a concurrence by Justice John Paul Stevens stressing the evidence that this was a political gerrymander, not a racial one.

The fate of North Carolina’s 12th District–represented in the House by Melvin Watt, a black Democrat–remains uncertain. But Justice Thomas’ language will help states figure out how to stay on the constitutional side of the line in future redistrictings. This, in turn, may portend a gradual calming of the legal and political turmoil over racial gerrymandering that has raged at least since the 1982 amendments to the Voting Rights Act.

That 1982 legislation was designed to give black and Hispanic voters, who had often been submerged by racial-bloc voting in majority-white districts, more power to elect representatives of their choice. As interpreted in 1986 by the Supreme Court (then more liberal) in Thornburg vs. Gingles, the 1982 amendments were widely viewed as requiring the creation of as many majority-black and majority-Hispanic districts as possible, often by drawing districts contorted into odd forms.

Such race-based districting was pushed by a group marriage of convenience that united, on the one hand, civil rights groups and black and Hispanic politicians seeking safe seats; with, on the other hand, conservative white Republicans who stood to win more seats statewide if minority voters were packed into a few districts.

The Justice Department also pushed states hard to adopt race-based districting, under Presidents Bush and Clinton alike. Powerful objections–that this cure aggravates the underlying disease of racial polarization and racial-bloc voting; that minority voters have less overall clout in both Congress and state legislatures when they are packed into a few districts; and more–were swept aside.

Then, in 1993, the Supreme Court’s five conservatives started pushing back. In Shaw vs. Reno, they denounced efforts to ”balkanize us into competing racial factions,” and evinced visceral distaste for the ”bizarre,” serpentine shape that had been created to give what was then North Carolina’s 12th Congressional District a 53 percent black majority.

Justice Sandra Day O’Connor held for the Court that it was presumptively unconstitutional to create majority-black or majority-Hispanic districts if their shapes were so strange as to evidence an intent ”to separate voters into different districts on the basis of race.” Such a district could be justified only if, O’Connor suggested in sending the case back to lower court, in some rare case it was an indispensable remedy for a violation of the Voting Rights Act.

The Court’s new rule against racial gerrymandering put its reading of the Constitution on a collision course with its reading of the Voting Rights Act in Gingles, as that 1986 decision had been construed by the Justice Department and many lower courts.

The Justices followed through in 1995 and 1996 with three 5-4 decisions striking down majority-black districts as unconstitutional racial gerrymanders. In the first of them, Miller vs. Georgia, Justice Anthony M. Kennedy’s opinion denounced ”the Justice Department’s implicit command that states engage in presumptively unconstitutional race-based districting” in the name of the Voting Rights Act. Kennedy held that judges should subject voting districts to ”strict scrutiny” whenever ”race was the predominant factor” in drawing them.

Neither Miller nor the two 1996 decisions provided much practical guidance for states that want to draw districts without violating either the Voting Rights Act or the Court’s constitutional ban on racial gerrymandering. Hunt vs. Cromartie brings a bit more predictability to the scene.

This is not to say that Justice Thomas’ opinion entirely ends the confusion, or that it portends the emergence of consensus among the Court’s conservatives and liberals. But this small step toward clarity could point toward an eventual withering away of the racial gerrymandering litigation that has so roiled the courts and the country since 1993.

This is so in part because the Thomas opinion implicitly suggests a way of accommodating liberals’ desire to see significant numbers of black and Hispanic candidates elected with conservatives’ distaste for the use of overt racial gerrymandering to achieve that result.

Because African-Americans are among the most loyal of Democrats, the elected officials who draw district lines may often find that the most efficient form of political gerrymandering–which is to aggregate precincts with the most heavily Democratic (or Republican) voting patterns– will also create sufficient concentrations of black voters to help elect their chosen candidates, many of whom will also be black.

This does not mean that race-conscious partisan gerrymandering is or should be mere camouflage for racial gerrymandering. A districting plan motivated mainly by political rather than racial considerations will tend to produce more racially integrated, less balkanized districts, often with large black (or Hispanic) pluralities rather than majorities. This will foster the building of cross-racial coalitions–not a bad thing. Such political gerrymandering is also less likely to send voters the noxious message that they are supposed to cast their ballots along racial lines.

The ultimate goal should be to ensure that black and Hispanic voters have a fair chance of electing their chosen candidates without resorting to racial gerrymanders. As more and more black and Hispanic candidates win elections in majority- white districts, that goal seems ever more achievable. Hunt vs. Cromartie brings it closer still.