In Odd Racial Gerrymandering Case, 3-Judge Court Finds Compelling Evidence Race Predominated Drawing Georgia Districts But Denies Preliminary Injunction

Via this AJC news story comes this ruling from a 3-judge court issued June 1 (with one of the judges concurring the result only).

Here’s what’s odd: the court concludes that “The plaintiffs’ evidence that race predominated this redistricting process is compelling.” And the court rejects the “race or party” issue in a well written paragraph, relying on Cooper just as I suspected lower courts would:

No party to this lawsuit disputes that redrawing Districts 105 and 111 made them more white and less black. But to state a claim for racial gerrymandering, the plaintiffs must show more than that. They must show “that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Bethune-Hill v. Va. State Bd. of Elections, 580 U.S. ___, 137 S. Ct. 788, 794 (2017) (quotation omitted). A plaintiff can make that showing “either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose.” Miller v. Johnson, 515 U.S. 900, 916, 115 S. Ct. 2475, 2488 (1995). This is particularly hard to do when the State offers a defense rooted in partisan gerrymandering, as it did here. We did not move these voters because they are black, the State tells us. We moved them because they were Democrats. And under current Supreme Court precedent, the State tells us this motive is perfectly acceptable. But if the State has “placed a significant number of voters within or without a district predominantly because of their race,” they have engaged in unconstitutional racial gerrymandering, even if the ultimate objective of  those moves was partisan advantage. Cooper v. Harris, 581 U.S. ___, 137 S. Ct. 1455, 1473 n.7 (2017) (quotation omitted and alteration adopted). This record documents that Ms. Wright had racial data available

And yet the majority concludes it can’t issue a preliminary injunction because there was not enough evidence to satisfy the standard: (“Yet we recognize that it does not rise to the level of the evidence found sufficient in Bush v. Vera, 517 U.S. 952, 116 S. Ct. 1941 (1996). There, the Supreme Court pointed to the surgical precision with which redistricters drew lines around black neighborhoods and the “extreme and bizarre” district lines that resulted.”) In a footnote they suggest plaintiffs are unlikely to succeed on the merits in proving racial gerrymandering. Elsewhere they suggest there are credibility issues which await trial. The court never considers the other preliminary injunction factors, meaning it stopped because it did not find race predominated enough (much less whether the line drawing was justified by a compelling interest).

This is just a mess.

The concurring opinion concurs in the result only, and rejects the idea that there was evidence that race predominated.

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