“The Shifting Ground of Redistricting Law”

Very important Chris Elmendorf post at Balkinization, with a more negative view of Cooper v. Harris:

How then is a state to comply with Section 2 of the Voting Rights Act, which, as noted above, has long required states to create districts with enough minority voters (a “racial target”) to consistently elect minority “candidates of choice.” One unhappy possibility is that the Court will simply undertake to free redistricters from the latter obligation, holding Section 2 unconstitutional or narrowing it beyond recognition on the basis of an asserted conflict with the anti-sorting equal protection principle.
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Of course, all of this is somewhat speculative. Writing at SCOTUSblog, Kristen Clarke and Ezra Rosenberg argue that Cooper and Bethune Hill, read together, require plaintiffs bringing a racial sorting / equal protection claim to show (as the trigger for strict scrutiny) quite a bit more than the existence of a firm racial-composition target plus the movement of voters to achieve the target. I’m not convinced, but for now, there’s enough looseness in the doctrine for lower courts to go either way on this question.
What is clear is that the Supreme Court, unhappy about racial sorting, is on guard against pretextual justifications for the practice. As Justice Kennedy for the Court remarked in Bethune Hill, “Traditional redistricting principles . . . are numerous and malleable . . . . By deploying those factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”
Going forward, any redistricters who undertake to draw districts with a racial-composition target (majority-minority or otherwise) would do well to announce that the target is merely one objective to be considered and balanced alongside many others, rather than a categorical command. The crossing of fingers is also recommended.

 

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