Back to the drawing board
Racially-motivated redistricting in North Carolina ruled unconstitutional by the Supreme Court of the United States.
Image: NC Districts (Courtesy of Author)
The Supreme Court of the United States dealt a blow to Republican lawmakers in North Carolina, holding on Monday, May 22, that the State violated the United States Constitution by redrawing congressional districts in a manner which impermissibly used race as the primary consideration. Justice Elena Kagan authored the 5-3 ruling, furthering the Court’s stance that the excessive use of race as a consideration in redistricting will simply not be allowed. Kagan was joined by her three fellow liberals on the Court, Justices Ginsburg, Sotomayor, and Breyer. The deciding vote, giving Kagan the majority, was by the conservative Justice Thomas. The recently sworn in Justice Gorsuch did not take part in decision, as he was not on the Court when the case was heard.
[T]he two districts became majority black at the expense of removing black voters from contentious neighboring districts.
The Constitution defers to the states the power to draw their own congressional voting districts, but it places a fair constraint on that power: states may not use race as the predominant means of deciding new district lines, unless it can proffer a compelling justification. The Supreme Court agreed with the three-judge Federal District Court ruling out of North Carolina’s Middle District, which stated lawmakers acted beyond that limitation when they redrew two voting districts to become majority black. The issue, though, is not that the two redrawn districts became majority black, but that the two districts became majority black at the expense of removing black voters from contentious neighboring districts. It seems Republican lawmakers attempted addition by subtraction.
This case concerns North Carolina’s first and twelfth congressional districts. District 1 is in the eastern and northeastern parts of the state, running along the Virginia border from the middle of the state to the east, and stretching south as far as Durham. District 12 is physically small, but contains the greater Charlotte area, packing many voters into a small area.
The North Carolina lawmakers’ redrawing increased District 1’s black voting age population from 47.6% to 52.65% and District 12’s black voting age population from 43.7% to 50.66%. Critics of the redrawn districts argue that the Republican legislature was packing black voters into a few districts to keep the remaining districts whiter, and thus, more Republican. This alleged voter dilution spurred the lawsuit which has brought us to this point.
When a voter, or a group of voters, sues state officials alleging unconstitutional racial gerrymandering, the Court analyzes the case through a two-step analysis.
The Supreme Court has stated, “the Equal Protection Clause of the Fourteenth Amendment prevents a State, in the absence of ‘sufficient justification,’ from separating its citizens into different voting districts on the basis of race,” citing its recent decision in Bethune-Hill v. Virginia State Bd. of Elections. When a voter, or a group of voters, sues state officials alleging unconstitutional racial gerrymandering, the Court analyzes the case through a two-step analysis.
First, the burden lies on the plaintiff to prove that race was the primary consideration leading the legislature to redraw district lines and reallocate voters. If the plaintiff meets that burden, the burden shifts back to the state to prove that its reallocation of voters based on race is supported by a compelling government interest and is narrowly tailored to meet those ends. In other words, the state must survive strict scrutiny.
One of the only ways to survive strict scrutiny at this stage is to argue that the race-based district redrawing was done in order for the state to comply with the Voting Rights Act of 1965 (VRA). When invoking the VRA, the state must prove that the statute required the state to redraw its districts through race-based means. The Court notes that a lower court’s factual findings during this two-step analysis are reviewed for clear error, not de novo.
[L]awmakers were not attempting to comply with the VRA, but rather use it as a smokescreen to hide their true intentions—creating more reliable, red districts outside of Districts 1 and 12.
Thornburg v. Gingles sets out three factors, all of which must be satisfied, to prove a vote-dilution claim. First, a minority group must be large enough and geographically compact enough to constitute a majority within a legislative district. Second, that minority group must be “politically cohesive.” Third, a district’s white majority must consistently vote in a way which defeats the minority’s candidate of choice. If all three of this factors are met, then a state has reason to believe that a voting district may be in violation of the VRA, and thus, require redrawing with race in mind.
This, of course, is the argument the state legislators made in defense of the redrawing. The state argued that it had compelling reasons to believe that it had to redraw District 1 the way it did to avoid conflicting with the VRA. Specifically, the state argued that if it had not redrawn District 1 as it did, it would be in violation of section 2 of the VRA, which prohibits vote dilution.
Section 2 of the VRA “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups” found within the Act. This prohibition against discriminatory voting practices and procedures applies nationwide to any practices or procedures that result in the denial of the right to vote based on one of the above-mentioned classes of citizens.
The fault in the state’s argument is that, while District 1 did indeed have less than 50 percent black voters, District 1 has consistently elected the minority’s preferred candidates—Democrats. This labels District 1 as a “crossover district,”where enough members of the majority assist the minority in electing its candidate. This fact alone signals that lawmakers were not attempting to comply with the VRA, but rather use it as a smokescreen to hide their true intentions—creating more reliable, red districts outside of Districts 1 and 12.
Today’s ruling sends a stark message to legislatures and governors around the country: racial gerrymandering is illegal and will be struck down in a court of law.
The North Carolina legislators will continue to maintain they believed they were compelled to redraw District 1 to have a majority black voting age population. The state has argued that because District 1 was in need of a higher voting population, it felt the issue was not whether District 1 was in violation of the VRA as it was, but whether District 1 would be in violation of the VRA in the future if the district was redrawn without a focus on race.
The state runs into another problem with this rationale, as well. Justice Kagan points out that while the state has put forth its argument that VRA liability could spring up in the future, it never made any legislative inquiry into that issue. The legislature seems to have made no attempt at exploring whether a redrawing of District 1 without regard to race would have actually led to VRA liability. Instead, the legislature reasoned that crossover districts do not satisfy section 2 of the VRA. This mistaken belief stems from the Supreme Court’s decision in Bartlett v. Strickland.
Strickland held that section 2 of the VRA “does not require crossover districts for minority groups which are insufficiently large” within a voting district under the Gingles analysis. The North Carolina lawmakers have read this to mean that since section 2 of the VRA does not require crossover districts, it also “cannot be satisfied by crossover districts” for groups that meet the Gingles size factor. Justice Kagan pointed out this interpretation of the law was incorrect and upheld the North Carolina District Court’s finding that the state’s use of race in redrawing District 1 does not survive strict scrutiny.
The Court also found the redrawing of District 12 did not survive strict scrutiny. The state argued for this redrawing in a wholly different manner, though. Here, the state simply argued that the redrawing of District 12 was purely political gerrymander, giving no regard to race. The District Court ultimately sided with the plaintiffs, and since, as stated above, these decisions are reviewed for clear error, the Supreme Court will defer to the District Court’s ruling as long as it can find that that finding was plausible. Here, the District Court’s finding that the evidence proved the primary purpose behind the redistricting was racially based met that standard.
Eric Holder, former Attorney General and current chair for the National Democratic Redistricting Committee, praised the decision, stating, “This is a watershed moment in the fight to end racial gerrymandering. Today’s ruling sends a stark message to legislatures and governors around the country: racial gerrymandering is illegal and will be struck down in a court of law.” Conservatives on the other side of the issue claim the Court’s ruling has created more confusion. Hans von Spakovsky of the Heritage Foundation argues that allowing race to be a factor in redistricting, just not the predominant factor, is so vague it is not even a rule at all.
For now, it remains a rule that partisan gerrymander, but not racial gerrymander, is permitted. It is easy to see how the line between the two could be obscured, though. With the black voting population weighing heavily towards the left in terms of candidate preference, drawing a distinction between a partisan redistricting and racial redistricting could become difficult to parse. According to the Supreme Court, that was not the case here.
