Rick Hills on the Racial Redistricting Cases

Rick Hills, a colleague, has a provocative essay at prawfsblawg, on the post-2010 racial redistricting cases, including Monday’s decision in the North Carolina case.  Here is how he opens his analysis (his words, not mine):

Since at least the 2010 census, Republican state legislators in the South have been zealously “packing” black voters into districts with ever-larger black majorities in order to minimize Democrats’ political influence. The ploy has been justified by Republicans as an effort to comply with the Voting Rights Act, but, as Ari Berman noted back in 2012, this race-based districting has led to an extraordinary level of racial segregation in Southern politics. In effect, the Southern Republicans are trying to convert the Democratic Party into a black party, on the logical theory that a party drawing on support only from a minority race will be a permanently minority party.

This use of the Voting Rights Act posed an ironic role reversal for Republicans and Democrats on SCOTUS. During the 1990s and early oughts, Democratic appointees and liberals on SCOTUS, (in, for instance, Easley v. Cromartie) had pressed for a lax, fact-based review of race-based districts under an incomprehensible “predominant factor” test. Republican-appointed conservatives, led by Chief Justice Rehnquist (in Shaw v. Hunt) and Justice Kennedy (in Miller v. Johnson), had pushed back against such a standard of review, championing the color-blind constitution in electoral districting. The line-up mirrored the sides in Grutter and Gratz: race-based districting had the ideological look of an electoral version of affirmative action.

After the 2010 census and accompanying redistrictings, however, it was painfully clear that race-based districts were serving the interests of the white Republican majority by minimizing the influence of Democrats, black and white. The question naturally arose: Would liberals and conservatives on SCOTUS switch sides to match their legal views with their partisan loyalties? Would conservatives, in particular, stick to their color-blind convictions, even when it gored the Republican ox? Or would they support only fair-weather, “strict-in-theory, rational-basis-in-fact” sort of color-blindness?

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