I’ve now had a chance to read Rick Hasen’s assessment of the North Carolina case and I feel obligated to note my fundamental disagreement with the most dramatic parts of his post.
Rick says there are “two bombshells” in footnotes to the case and then says “Holy cow this is a big deal” and “wow” about what is purportedly buried there. But the principles stated in those notes are nothing new; they go back to the first cases decided in this area, in the 1990s; and there is no disagreement between the majority and the dissent about these principles.
The majority and dissent disagree about what plaintiffs should have to do to prove their case and on what the most appropriate factual findings are here. But that’s all they disagree about. Contrary to Rick, the majority is not holding anything like the principle that it will treat partisan-based districting (or partisanly-motivated election regulation more generally) as a proxy for race-based districting (or race-based election regulation). Doing that certainly would be revolutionary, and would indeed trigger enormous debates within the Court. But there are no such debates today because the Court did nothing of this sort.
1.Ever since the mid-1990s, the Court has been clear that sorting voters by race – for any reason – triggers strict scrutiny. More technically, when sorting voters by race is the predominant reason for a district’s design, the district must survive strict scrutiny. That has always meant that race cannot be used as a proxy for likely political voting patterns. The footnotes Rick references say nothing more than that.
2. Thus, in Bush v. Vera, 517 US 952, 969 (1996), the Court held Texas districts unconstitutional because “political gerrymandering was accomplished in large part by the use of race as a proxy.” Similarly, that opinion also said that race could not be used “as a proxy” for political voting patterns or anything else. The Court condemned “the misuse of race as a proxy” for incumbent protection or partisan advantage seeking. The State may not “use race as a proxy to serve other interests.” And very directly, the Court held: “District 30 also involved the illicit use of race as a proxy when legislators shifted blocs of African-American voters to districts of incumbent Democrats in order to promote partisan interests.” Again, the passages Rick fixates on say nothing more than what the Court has always said about this, since the racial gerrymandering cases began. Indeed, the very footnotes Rick references explicitly, and accurately, cite these cases from the mid-1990s. There is simply nothing new here.
3. In other words, the North Carolina case (regarding CD 12) remains within the standard mold of trying to decide whether voters were sorted by race or by party. If voters are moved as Democrats or as Republicans, that is fine, as long as the Court does not put constraints on partisan gerrymandering. But if they are moved as black or white citizens, that can trigger strict scrutiny. Again, there is nothing new about that (however much sense it does or doesn’t make).
4. For just these reasons, there is nothing surprising about the fact that neither Justice Thomas nor the dissenting Justices took issue with the footnotes that Rick considers “bombshells.”Thus, one cannot conclude from today’s opinion, as Rick suggests, that the decision “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.” Yes, it would be doctrinally radical for the Court to conclude that partisan gerrymandering is equivalent to racial gerrymandering. But that’s not at all what the Court did.
5. In fact, the entire fight between the majority and the dissent would have taken very different form in that event – the dissent argues that partisanship best explained CD 12, but if the majority really was establishing the principle Rick suggests, then the majority could have said it doesn’t matter if that’s why NC did it, because “discriminating on the basis of party [here] is equivalent to making race the predominant factor.” But instead, the majority’s position was that voters were sorted by race and that’s why strict scrutiny is required.
6. Since this is closely related, I’ll mention that I also don’t agree with point 10 in Rick’s post, discussing the 4th Circuit voting-rights case, also from NC. Once again, the crucial fact there is that the NC legislature was found to have acted with an unconstitutional racial purpose because it used racial data to choose which voting regulations to enact, and it chose those that the court concluded disadvantaged black voters – and chose them for that reason. This is a case of race-based discriminatory treatment, pure and simple.
7. It’s much too fast and loose to suggest, as Rick does, that these cases treat “race and party as proxies for one another.” Racial classifications and racial sorting have for many years been uniquely suspect. They cannot be engaged in without meeting the standards of strict scrutiny. And a defense cannot be that we were looking to gain partisan advantage by doing so.
But that’s quite different from saying the court will treat party – and partisan-advantage seeking – as a proxy for race, where the two correlate. Nothing in today’s decision does that or changes the law on the relationship between race and party in these cases.
UPDATE: After posting this, I saw that Justin Levitt posted a quite similar critique of Rick Hasen’s discussion. Looks to me like I agree with Justin on what the Court’s opinion actually did and with his rejection of Rick Hasen’s discussion of the decision.