The Supreme Court has issued this 5-3 opinion in Cooper v. Harris. Justice Kagan wrote the opinion for the Court, with Justice Thomas making the fifth vote for affirmance. Chief Justice Robert and Justices Alito and Kennedy dissented. That is an interesting lineup, to be sure.
There is a lot of detail but here is my bottom line: This decision by Justice Kagan is a major victory for voting rights plaintiffs, who have succeeded in turning the racial gerrymandering cause of action into an effective tool to go after partisan gerrymanders in Southern states. That Justice Kagan got Justice Thomas not only to vote this way but to sign onto the opinion (giving it precedential value) is a really big deal. Despite what is written in the text of the opinion, Justice Kagan, in a couple of footnotes (footnotes 1 and 7), attempts to solve the race or party problem by moving the Court much closer to the position of treating race and party as proxies for one another in the American South. Points 8 -10 below explains this in detail.
Justice Alito, in his partial dissent for himself, the Chief Justice, and Justice Kennedy, is incensed at the decision, seeing it as inconsistent with the Court’s earlier decision in Easley v. Cromartie. He begins his dissent with: “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 regarding NorthCarolina’s 12th Congressional District: The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district.”
Here’s more detail.
- The key question in these racial gerrymandering cases has been to consider if race is the legislature’s predominant motive in drawing district lines. If it is, the district is subject to strict scrutiny and the state has to come forward with a compelling reason for making race the predominant factor.
- The harm in the racial gerrymandering cases is not vote dilution (which is separately considered under the Voting Rights Act and Constitution). The harm has been conceived of as an expressive one of sending the message that voters have been separated on the basis of race without adequate justification. It is a theory J. O’Connor invented in the 1993 Shaw v. Reno case. Liberals used to hate the theory, till this decade, when they started using the theory to attack Republican gerrymanders that Republican legislatures justified as compelled by the Voting Rights Act. I’ve been critical of the cause of action whether used by conservatives or liberals. See this paper, Racial Gerrymandering’s Questionable Revival.
- In today’s case, Cooper v. Harris, the Court considered a federal court finding related to two congressional districts, District 1 and District 12, both found to be racial gerrymanders by a federal three judge court. The court quickly disposed of the question of how to treat a contrary state court ruling related to these districts, finding the state case presented evidence to consider but did not preclude the findings in the federal case.
- As to District 1, the state tried to justify its drawing of the lines as required by the Voting Rights Act. The court disagreed, finding that the Voting Rights Act did not require drawing of the districts. This ruling is like the Court’s recent rulings in cases from Alabama and Virginia, where the Republican legislatures used supposed compliance with the Voting Rights Act to justify packing minority voters into a smaller number of districts (but not enough to create a viable vote dilution claim under the Voting Rights Act). This part of today’s case is relatively uncontroversial.
- The controversy comes from the analysis of District 12. That district raises the question whether race or party predominated in redistricting. This is a particularly difficult question in the American South, because of “conjoined polarization,” race and party overlap to a great extent, so the question of which predominates is somewhat nonsensical. I make that case extensively in a forthcoming essay, Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases.
- The district court held that race predominated in drawing the district lines. Justice Kagan tries to make her analysis seem routine and perfunctory: a district court’s finding on this is entitled to significant deference, and is reviewed only for clear error. There was enough evidence to support the finding that race predominated, and we must defer.
- Kagan has to deal, however, with a holding in an earlier race or party case from the same North Carolina district, Easley v. Cromartie (Cromartie II). In that case, Justice Breyer said that in cases “such as this one,” a plaintiff challenging a district as a racial gerrymander has to show by producing an alternative map that the state could have achieved its same political objectives with a map showing greater racial balance. Justice Kagan demoted this rule from Cromartie II to just a factor to consider, and not necessary to win in this case. This is what makes Justice Alito so apoplectic in his dissent. (He dissented only on District 12.) Reviewing the evidence under that standard, he says the trial court committed clear error.
- Despite Justice Kagan’s attempt to explain this as a ho-hum deference to a judicial finding of fact, there are two bombshells in footnotes in the case. Recall that with District 12 the question is race or party, as though these are two separate categories. And in the body of the decision Justice Kagan says it will defer to the trial court’s decision that it is race and not party. (This conforms, using the terms of my draft Essay, to the “race or party” approach.) But in Footnotes 1 and 7, the Court explains that in places where race and party overlap so much they can be treated as proxies for one another. (This conforms, using the terms of my essay, to the “race as party” proxy approach.) Here’s part of Footnote 1: “A plaintiff succeeds at this stage even if the evidence reveals that a legislature elevated race to the predominant criterion in order to advance other goals, including political ones.” And here is Footnote 7: “As earlier noted, that inquiry is satisfied when legislators have“place[d] a significant number of voters within or without” a district predominantly because of their race, regardless of their ultimate objective in taking that step. See supra, at 2, and n. 1. So, for example, if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests—perhaps thinkingthat a proposed district is more “sellable” as a race-based VRA compliance measure than as a political gerrymander and will accomplish much the same thing—their action still triggers strict scrutiny. See Vera, 517 U. S., at 968–970 (plurality opinion). In other words, 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. See Miller, 515 U. S., at 914.” (My emphasis)
- Holy cow this is a big deal. 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. (Why Justice Thomas went along with all of this is a mystery to me. He joined in the opinion, and his separate opinion expresses no disagreement with these footnotes.)
- This race and party as proxies for one another, as I explain in my essay, was also the theory used by the 4th Circuit in holding that North Carolina passed its strict voting law with racially discriminatory intent. That’s not the same question as the predominance question in racial gerrymandering cases, but it is parallel, and it shows the race and party as proxies issue working its way into the law. This is a much more realistic approach to political regulation, and I am glad to see it being elevated in contrast to “race or party” (though I make clear in the essay I prefer a different approach).
- Now that we have this ruling, the Court will have to confront a partisan gerrymandering case directly out of North Carolina. In response to the lower court ruling in this case, North Carolina passed a new plan, and it went out of its way to call it a partisan gerrymander. Explicitly and on the record. The three judge court said it could not police the partisan gerrymander under the 2004 Vieth case, and plaintiffs filed an appeal from that too, which has been sitting at the Court and will now need to be acted upon.
- And there’s also a finding of racial gerrymanders in NC general assembly races, which is pending before the court. A lower court had ordered special elections in 2017, which had been put on hold by the Court. Perhaps plaintiffs will now try to get that hold put aside by the Court.
[This post has been edited, and will likely continue to be edited today.]