Analysis of the Supreme Court’s North Carolina Racial Redistricting Case

[This post will soon also appear at the SCOTUS blog]

The main take-away from today’s decision is that the Supreme Court is continuing the project of winding down unnecessary racial redistricting.  The decision reflects the Court’s effort to modernize the Voting Rights Act (VRA) and ensure it adapts to the changing dynamics of race and politics, in some parts of the country, in the many decades since the Act first was passed.  The crucial fact in today’s decision is that 30-40% of white voters in parts of North Carolina are willing to cross-over and vote for the same candidates that African American voters prefer – and that application of the VRA and the Constitution must recognize these changing realities.

The Court today shored up the constitutional constraints limiting the use of race in redistricting, which has been the main development in the law of redistricting this decade.  That development began with the Alabama cases, Alabama Legislative Black Caucus v. Alabama, and has now been extended to Virginia and North Carolina.  And the Court also opened up a new avenue of constraint by holding that if white voters now vote for candidates black voters prefer at high enough rates, the intentional creation of majority-black districts is no longer required – and indeed, is unconstitutional.

Let me situate today’s decision, before turning to its specifics, in the broader context of the VRA and how race came to play the role it currently does in the modern era of redistricting.

The regime of VRA-required racial redistricting began in the 1990s, in the wake of Congress’ 1982 Amendments to the VRA and the Supreme Court’s 1986 decision in Thornburg v. Gingles.  But almost immediately after the start of that regime, beginning with the Shaw v. Reno line of cases, the Court has been struggling to cabin in and constrain VRA-required race-based districting to circumstances in which it is truly necessary.  In an opinion by Justice Souter back in 1994, Johnson v. DeGrandy, the Court wrote that race-based districting under the VRA relies “on a quintessentially race-conscious calculus aptly described as the ‘politics of the second best.’”  A majority of the Court – confirmed by the parts of today’s opinion that are unanimous – has acted on that view ever since.   If the VRA truly requires race-based districting in certain circumstances, that is fine.  But the Court has been extremely wary of extending the regime of race-based districting anywhere beyond those circumstances.

Thus, over the last 30 years, the Court has held that the VRA does not require maximizing the number of minority districts, but only ensuring that minority voters have an equal opportunity to elect their candidates of choice; it has held that the VRA does not require (and the Constitution prohibits) using irregular district shapes to create “minority opportunity” districts; it has held that the VRA does not apply if minorities cannot be made into the majority  in a district.  And with ever more force – as in today’s decision – the Court has held that the Constitution is violated if jurisdictions use the VRA to engage in race-based districting unless it is clear that the VRA clearly requires doing so.  I sensed developments moving in this direction back in a 2007 article, The Decline of Legally Mandated Representation, and since then, the Court’s efforts to constrain unnecessary race-based districting have become only more pronounced.

The most important aspect of today’s decision is the Court’s unanimous conclusion that Congressional District 1 (CD 1) is an unconstitutional racial gerrymander.  It would be easy to miss that this part of the opinion is unanimous, because the Court divided 5-3 on a second district at stake, CD 12.  But I have always said the most important issue in the NC case was that involving CD 1, and there, the Court agreed in unison.

With respect to CD 1, the critical point is that the Court rejected North Carolina’s argument that the VRA required it to create a majority-black district to make sure black voters had equal political opportunity.  More specifically, the Court concluded that voting in this area was not racially polarized enough to require the remedy of a majority-black district.

What does it mean for voting to be racially polarized (RPV)?  This has been a key concept under the VRA, yet the Court has given the concept almost no significant attention – with today’s decision being the Court’s first and thus most significant opening up of questions about this concept.

When RPV first entered this area of the law, the idea was simple: if 90% of blacks vote for one candidate and 90% of whites vote for the opposing candidate (especially when the former candidate is black), there is a clear pattern of RPV.  But what happens when – as in North Carolina today – roughly 30-40% of whites are willing to vote for minority candidates?  Since the VRA is only triggered in the redistricting area when voting is racially polarized, should RPV still be considered to exist in NC when there is this level of white cross-over voting support?  If the VRA still applies, how does it apply when we no longer have in NC the extreme and stark racial polarization of earlier decades?

Here is how the Court resolves these issues as they come to bear in CD 1:  for the last twenty or so years, white cross-over voting support has been strong enough that, even though the district had a black population of only 46-48%, it overwhelmingly and repeated elected a black member of Congress – typically, with 70% of the vote.  Yet North Carolina took the view that the VRA required it to pump up the black population above 50% to be sure the district was “safe” in ensuring for black voters an equal opportunity.  But the Court held that voting cannot be considered racially polarized when enough white cross-over support exists that black candidates are being elected from districts that are less than 50% black.

This conclusion is of great significance in further unwinding unnecessary racial redistricting.  It means that the mechanical creation of majority-minority districts will no longer be constitutionally tolerated.  If a cohesive black community can get its preferred candidates elected in districts that are, perhaps, only 35-40% black, then pumping those districts up to more than 50% black – on the view that the VRA requires it – will be unconstitutional.  This opens up much more space for the creation of what I have called coalitional or cross-over districts, in which black and white political coalitions unite behind the same candidates.  Indeed, as the Court today recognized, it would turn the VRA on its head if the law actually required – as North Carolina insisted it did – that these kind of effective coalitional districts had to be turned into majority-black districts, just to ensure they are sufficiently “safe.”

Put in other terms, the decision confirms that States must adhere to the view that the intentional creation of majority-minority districts is a “second best” remedial device, to be used only where clearly required.  Indeed, important parts of the opinion further emphasize that States must have a strong record in support if they engage in race-based districting:  States must do a thorough job of demonstrating that doing so is necessary – “the State must carefully evaluate” whether the facts support race-based districting, and the State must engage in a “meaningful legislative inquiry” about whether doing so is necessary.

There are other aspects of today’s decision that will also be important in enforcing constitutional constraints on the excessive and unjustified use of race in redistricting.  The Court said, once again, that  the setting of “a racial target” that has a direct impact on the design of a district means that strict scrutiny is triggered and the district can survive only if the VRA requires it.

Once again, the Court confirmed that if the State intentionally sorts voters by race into districts, the State cannot hide behind the argument that its ultimate goal was to pursue an effective partisan gerrymander.  To the extent partisan gerrymandering is constitutional, States can sort voters by their voting patterns, but not by their race.  As the Court has said before, race cannot be used as a “proxy” for political voting preferences.  To be sure, this can create a quagmire for the lower courts if a State does not directly and obviously use race to sort voters; the courts then have to disentangle whether it was “really” race or partisan factors that drove the district’s design (I have long argued that it makes little sense for the Court to impose constitutional constraints on racial gerrymandering, but not partisan gerrymandering).

There is still more in today’s decision:  The Court held that plaintiffs in these Alabama cases do not have provide their own alternative map (which can be a costly and time consuming venture) in order to be able to prove that a jurisdiction has engaged in race-based districting.  And there had been a confusing couple of sentences in an earlier case, also from North Carolina, that had befuddled the lower courts; the Court today confines those sentences to the particular facts of that one case, as Justice Thomas, who joined the majority, pointed out.  That will clarify the law further and make successful challenges alleging race-based districting more likely.

In each and every respect of today’s decision today, then, the Court built on the Alabama line of cases further and made it all the more clear that the Court will aggressively police the role of race in redistricting, not permit the VRA to become a vehicle for excessively packing black voters into districts, and will continue the project of unwinding unnecessary race-based districting.

Disclosure:  I argued one of the Alabama cases and continue to represent plaintiffs in that case, which remains pending in the lower courts.

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