Breaking: 3-Judge Court Unanimously Rules NC State Districts Unconstitutional Racial Gerrymander

A unanimous 3-judge court (including the district court judge who recently upheld North Carolina’s strict voting law) has held in a 167-page opinion that challenged North Carolina legislative districts are unconstitutional racial gerrymanders and need to be redrawn.

This ruling follows a familiar pattern in these racial gerrymandering cases: a Republican legislature draws district lines to give the party an advantage by packing minority voters into a smaller number of districts. The state defends itself by saying it had no choice, but it had to pack in order to comply with the Voting Rights Act. Plaintiffs sue, and say that the Voting Rights Act does not require this packing, and that in fact the legislatures made race the predominant factor in redistricting in violation of the prohibition on racial gerrymandering first set out in the 1993 case of Shaw v. Reno.

The Supreme Court struck down Alabama districts on this basis in the Alabama Legislative Black Caucus case, and there are already two racial gerrymandering cases the Supreme Court will hear in the next term, including one involving a similar claim as to North Carolina’s congressional districts. I presume the state will appeal this case too to the Supreme Court, and the Court will either agree to hear the case, or grant, vacate, and remand it after it decides the other cases.

As to the timing of relief, the court excluded affecting the 2016 elections for change but directed the following as to the remedy:

After careful consideration, and with much reluctance, we conclude that necessity demands such a result today. We decline to order injunctive relief to require the state of North Carolina to postpone its 2016 general elections, as we believe such a remedy would cause significant and undue disruption to North Carolina’s election process and create considerable confusion, inconvenience, and uncertainty among voters, candidates, and election officials. Instead, like other courts confronted with similarly difficult circumstances, we will allow the November 2016 elections to proceed as scheduled under the challenged plans, despite their unconstitutionality….

Therefore, we hereby order the North Carolina General Assembly to draw remedial districts in their next legislative session to correct the constitutional deficiencies in the Enacted Plans. By separate order, we will direct the parties to file supplemental briefs on an appropriate deadline for such action by the legislature, on whether additional or other relief would be appropriate before the regularly scheduled elections in 2018, and, if so, the nature and schedule of that relief.

 To me the most interesting thing about these cases is how the racial gerrymandering tool, which started as a tool by conservatives to minimize the number of majority-minority districts, has become a tool to further minority voting rights and to limit Republican gerrymanders. (it is no surprise that Democrats’ lawyers from Perkins Coie are heavily involved in these cases).  I explore the morphing of the racial gerrymandering cause of action in Racial Gerrymandering’s Questionable Revival, 67 Alabama Law Review 365 (2015). And just today I flagged Justin Levitt’s must read article on how Republicans suddenly found love for the Voting Rights Act—as an excuse to create more white, Republican districts. Check out Justin’s Quick and Dirty: The New Misreading of the Voting Rights Act, 43 Fla. St. U. L. Rev. 573 (2016).

[This post has been updated.]

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