Assessing the Supreme Court’s gerrymandering decision

Assessing the Supreme Court’s gerrymandering decision

The U.S. Supreme Court ruled Monday that the North Carolina GOP drew unconstitutionally racially gerrymandered congressional districts, but what does it mean and where do lawmakers go from here?

A summary of the case:

Cooper v. Harris, formerly known as McCrory v. Harris, concerns the state’s redrawing of two congressional districts after the 2010 census, District 1 – comprised of towns including Durham, Greenville, Elizabeth City, Henderson, Roanoke Rapids, Rocky Mount, Goldsboro and New Bern – and District 12 – comprised of portions of Charlotte, Winston-Salem, Greensboro, Lexington, Salisbury, Concord and High Point.

Before redistricting, neither district had a majority black voting-age population but both consistently elected the candidates preferred by most African-American voters, according to the Supreme Court opinion.

The state reconfigured District 1 by increasing its black voting-age population from 48.6 percent to 52.7 percent and increasing the same population in District 12 from 43.8 percent to 50.7 percent.

Registered voters in those districts sued the state alleging racial gerrymanders. A lower court held that the congressional districts were in fact unconstitutionally drawn and forced the state to redraw the maps last year – a decision affirmed Monday by the Supreme Court.

The opinion was a 5-3 ruling, with new conservative Justice Neil Gorsuch not participating. Justice Elena Kagan wrote the 79-page document and, surprisingly, Justice Clarence Thomas joined the majority. Chief Justice John Roberts, Justice Anthony Kennedy and Justice Samuel Alito dissented in part.

What does the Supreme Court ruling mean?

Broadly speaking, the ruling creates the precedent that race cannot be used to draw district lines and has the potential to affect other gerrymandering cases in North Carolina.

Portrait of Anita Earls
Anita Earls, executive director of the Southern Coalition for Social Justice.

We already have new congressional districts in North Carolina,” said Anita Earls, Executive Director of the Southern Coalition

for Social Justice. “What I find most significant is that the legislature made the same legal mistake and used race the same way in drawing the state’s House and Senate districts. This opinion, with Justice Thomas joining the majority, must mean those districts are also unconstitutional.”

There are two other racial gerrymandering cases pending at the Supreme Court level, Dickson v. Rucho, which deals with legislative and congressional district maps, and North Carolina v. Covington, which deals with legislative maps.

The ruling also has the potential to affect case, not just in North Carolina, but across the South.

The Supreme Court, in affirming the lower court opinion, sends a message that legislators cannot target and unnecessarily pack black voters in redistricting, even if their end goal is political advantage, as the legislators argued,” said Ruth Greenwood, deputy director of redistricting at Campaign Legal Center. “In other words, politicians cannot purposefully use and sort voters by race merely to achieve partisan ends.”

Kagan summed up the high court’s opinion, “Although States enjoy leeway to take race-based actions reasonably judged necessary under a proper interpretation of the [Voting Rights Act,] that latitude cannot rescue District 1. We by no means ‘insist that a state legislature, when redistricting, determine precisely what percent minority population [§2 of the VRA] demands.’ But neither will we approve a racial gerrymander whose necessity is supported by no evidence and whose raison d’être is a legal mistake.”

Alito’s dissent argued that District 12 was not racially gerrymandered. He wrote that the district’s borders and racial composition “are readily explained by political considerations and the effects of the legislature’s political strategy on the demographics of District 12.”

Second, the majority largely ignores this explanation, as did the court below, and instead adopts the most damning interpretation of all available evidence,” he added.

Kagan pointed out that District 12 has been before the high court five times. She said the evidence offered at trial supports the conclusion that race, not politics, accounted for the district’s reconfiguration.

And no error of law infected that judgment: Contrary to North Carolina’s view, the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent,” she added.

Where does the state go from here?

The state already drew new congressional district maps in response to the lower court’s ruling in Cooper v. Harris, which will be used in the 2018 elections. Had the Supreme Court not ruled the way it did, those new maps would have reverted back to the maps in question.

The new maps, however, are also under fire, not for racial gerrymandering, but for partisan gerrymandering. Common Cause v. Rucho and League of Women Voters v. Rucho are both challenges to the state’s remedial congressional maps and will be heard in June.

Rick Hasen

Rick Hasen, a professor at the University of California Irvine School of Law and author of Election Law Blog, said that the Supreme Court’s opinion seems to indicate that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political)characteristics.”

Holy cow this is a big deal,” Hasen wrote. “It means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting. This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts.”

How the courts come down on partisan gerrymandering will have an impact on how the state moves forward in terms of redrawing maps and or holding special elections based on new maps.

Common Cause Executive Director Bob Phillips applauded the Supreme Court for its affirmation that racial gerrymandering is unconstitutional but said “sadly,” legislators responded with partisan gerrymandering.

The result has been rigged elections that continue to deny North Carolina voters of their constitutional right to have a voice in choosing their representatives,” Phillips said. “That’s why challenging partisan gerrymandering is so important now. We are hopeful that the court will find that like racial gerrymandering, partisan gerrymandering is unconstitutional.”

What have been the parties’ reactions to Monday’s ruling?

NC GOP Chairman Robin Hayes said the party’s position continues to be the same as the Obama Justice Department on the issue, which pre-cleared the districts as fair and legal.

Robin Hayes

I don’t know how any legislature can perform this task when the rules change constantly from case to case, often after the fact,” said he said. “Justice Alito stated it correctly in his dissent, ‘A precedent of this court should not be treated like a disposable household item – say, a paper plate or napkin – to be used once and then tossed in the trash. But that is what the court does today in its decision….'”

Hayes said the courts have put legislatures in an impossible situation “with their constantly changing standards.” He also pointed out that the ruling does not impact the current congressional map (which is being challenged for partisan gerrymandering) that Republicans believe is also fair and legal.

Senate President Pro Tem Phil Berger’s spokeswoman Amy Auth said Berger has the utmost respect for the Supreme Court but echoed Hayes’ sentiments that it is challenging to keep up with the changing rules.

Like Hayes, Auth also quoted from Alito’s dissent.

In 2016, North Carolina drew a new compact Congressional map without considering race, and voters should know the Congressional representatives elected under that map last November will continue to serve their current districts,” Auth added.

Wayne Goodwin

NC Democratic Party Chairman Wayne Goodwin told the News & Observer that the state’s congressional maps have frequently been used as an example of some of the most gerrymandered maps in the country.

Republicans in the General Assembly have constantly discriminated against African Americans and we hope to see an election cycle with the fair maps our state deserves,” he said.

Gov. Roy Cooper commended the Supreme Court for its decision.

“North Carolina voters deserve a level playing field and fair elections, and I’m glad the Supreme Court agrees,” he said. “The North Carolina Republican legislature tried to rig Congressional elections by drawing unconstitutional districts that discriminated against African Americans, and that’s wrong.”

Eric Holder Jr., the former attorney general and the chairman of the National Democratic Redistricting Committee called the Supreme Court opinion “a watershed moment in the fight to end racial gerrymandering.”

North Carolina’s maps were among the worst racial gerrymanders in the nation,” he said. “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.”