The Court has already decided one major racial redistricting case this Term, Bethune-Hill, from Virginia. The other major racial redistricting case, Cooper v. Harris, from North Carolina, is now one of three cases outstanding the longest since argument. Cooper involves two congressional districts, CD 1 and CD 12 (by now, CD 12 must have been litigated before the Supreme Court more times than any congressional district in history). I want to untangle the various issues at stake and provide perspective on which legal issues are the key ones to focus on when this opinion finally comes down.
To begin, the issues concerning CD 1 and CD 12 are quite different – and the ones involving CD 1 have the broadest legal significance (that makes it a bit unfortunate that most of the oral argument focused on CD 12).
For CD 1, the issues center on the legitimate role of race in the districting process, in a state where significant levels of white cross-over voting exist for candidates black voters also prefer. In CD 1, the North Carolina legislature increased the black voting-age population (BVAP) from 47.76% to 52.65%, even though at that lower population level the district had regularly performed as a successful Voting Rights Act (VRA) district – it had consistently elected the candidate of choice of black voters. But the State argues that to safely comply with the VRA, it sought to create a majority-black district. The plaintiffs argue that the VRA doesn’t require turning districts that are already working as VRA districts into majority-minority districts, and that NC therefore acted unconstitutionally by using race to an excessive and unjustified extent.
At stake here is whether the VRA requires creating majority-minority districts, even when districts with interracial coalitions are effectively electing candidates of choice of minority voters without minority voters needing to constitute a majority.
- For CD 1 the critical legal issues lie at the intersection of the VRA and the Constitution regarding the permissible role of race in the design of districts:
- The first significant issue is whether “race predominated” in drawing CD 1 and – just as importantly – if so why. More colloquially, the question is whether CD 1 is a racial gerrymander (racial gerrymanders can be constitutional, but the districts must survive strict scrutiny). The lower court called CD a “textbook example of” a racial gerrymander. But it provided two different kinds of reasons for that conclusion; the way the Court responds to these two different approaches is critical.
(1) Much of the lower court opinion concludes race predominated because the state set a specific racial target or floor on the BVAP the district had to have, which the redistricters said they did because that’s what the VRA requires. The lower court quoted the redistricters for making clear that the VRA required that CD have a BVAP “of at least 50 percent plus one person.” In passages like the following, the court suggested that it was the application of this racial floor, in itself, that required the conclusion that race had predominated: “Because traditional districting criteria were considered, if at all, solely insofar as they did not interfere with this 50-percent-plus-one person minimum floor, the quota operated as a filter through which all line-drawing decisions had to pass.”
Passages like this suggest it is sufficient for a court to conclude that a racial gerrymander has occurred if the redistricters apply a specific racial floor that a district must be above.
(2) But despite having said that, the court went on to provide a second type of reason to support concluding that race predominated in CD 1. The court found that the redistricters also split counties and precincts when needed to meet this 50% BVAP target. In legal terms, this means they subordinated traditional districting principles to the goal of meeting this target.
The significant issue is whether in deciding whether race predominates the first type of reason is indeed sufficient or whether redistricters must, in addition, subordinate traditional districting principles by doing things like splitting counties and precincts. The Supreme Court already engaged these issues to an extent in Bethune-Hill, as I’ve discussed, where the Court announced “[r]ace may predominate even when a reapportionment plan respects traditional principles.” But everything the Court says about these questions is important and any additional clarification the Court offers regarding when race predominates in the legal sense will be meaningful.
B. If CD 1 is a racial gerrymander and strict scrutiny applies, does the Court accept NC’s defense that increasing the BVAP to over the 50% level is an appropriate way to comply with the VRA here? In rejecting that defense, the lower court expressed its view in strong terms:
The suggestion that the VRA would somehow require racial balkanization where, as here, citizens have not voted as racial blocs, where crossover voting has naturally occurred, and where a majority-minority district is created in blatant disregard for fundamental redistricting principles is absurd and stands the VRA on its head.
How will the Court address NC’s defense?
- For CD 12, the issues are more narrowly fact-bound ones about whether politics or race was the predominant reason for the district’s design. As with CD 1, the BVAP was much higher after the redistricting than before and was similarly increased to over the 50% line: it went from 43.7% to 50.66%. But for this district, the state’s defense is very different. The state does not assert that it did this because of the VRA and the state denies setting any racial target for the district. Pure partisan politics, the State argues, caused the district to be designed as it was; this increase in the BVAP was simply the fallout from a partisan gerrymander.
If the Court concludes that CD 12 was a racial gerrymander, there is no doubt the district will be found unconstitutional. The state has offered no defense to the claim of racial gerrymandering for CD 12 (unlike CD 1) because the defense here is that no racial gerrymander took place, period.
The issue of untangling racial from political purposes is a recurring one in these cases, and the way the Court untangles those threads here will provide some guidance to lower courts. But because the disputes are largely factual ones, the legal issues at stake are not generally as broadly significant as those concerning CD 1.
There is, though, one element the Court is likely to address that will affect many cases. The Court spent much time at oral argument over a passage (really, a sentence) authored by Justice Breyer in an earlier North Carolina redistricting opinion, Easley v. Cromartie, that has caused a good deal of uncertainty and confusion in the lower courts. Given how much attention the Court spent at argument on this passage, the Court is likely to try to clarify the meaning of this language from this earlier NC case.
- There is also a complex procedural dimension to this case, which undoubtedly contributes to why the case has been pending so long. As is not uncommon in redistricting cases, we have two parallel sets of litigation here: both the North Carolina Supreme Court and the federal courts have addressed the same factual and legal issues. And the state and federal courts came to different conclusions, factually and legally, about both CD 1 and CD 12.
The case before the Supreme Court arises out of the federal litigation. But the Court has to confront the issue of how to handle situations where we have competing state and federal court findings of fact involving the same federal legal claims. Normally, the Court would apply the clear-error standard of review to the findings of the trial court whose decision the Court is reviewing – here, the federal court. But should the clear-error standard be applied differently when there is an additional set of findings of fact (here, contrary ones) in a separate state court proceeding? These are interesting procedural issues in federal-courts law, but they do not directly involve the substantive questions about the legitimate role of race in the districting process and the relationship between the VRA and the Equal Protection clause of the Constitution.
Short summary: even though the oral argument almost entirely neglected CD 1, that’s where I’ll be focused first when this case comes down.