Rick Hasen and Rick Pildes have already weighed in on the NC redistricting case this morning.
I agree with much of the Ricks’ analysis, and their assessment that this was utimately a win for voting rights plaintiffs. But I have to disagree with Hasen’s “holy cow” conclusion. The Court did not just treat race and party as proxies for each other. Indeed, I think that represents a version of the overly blunt approach that just got North Carolina smacked down.
[Full disclosure: I was involved with this case as an amicus — and the Court seems to have agreed with much of the brief I worked on.]
First, the agreement (and the good news). As both Rick H. and Rick P. have said, the Court today rejected a legislature’s attempt to hide unconstitutional behavior under the pretext of compliance with the Voting Rights Act, when real VRA compliance was not really an issue. I’ve written about the danger in letting recitations of VRA compliance become simple pretext — to drain the statute of meaning by letting legislatures use it merely as political cover while subverting its substance. Rick H. says that this part of the case is “relatively uncontroversial.” If that’s true, that’s reason alone to celebrate.
But there’s one part of Rick H.’s analysis — his “holy cow” conclusion — that I respectfully but vehemently disagree with. He says that Justice Kagan “attempts to solve the race or party problem by moving the Court much closer to the position of treating race and party as proxies for one another in the American South.” He says that Justice Kagan’s opinion essentially treats race and party as if they weren’t really discrete categories. He says this was also the basis for the 4th Circuit’s opinion in the North Carolina voting-procedures case, and calls the combined impact a bombshell. I don’t buy it.
In Rick H.’s telling, the Court this morning treated race and party as if they were interchangeable. I think there are three separate problems with such an approach, and I don’t think it’s what the Court actually did this morning. Both the political reality and the Court’s decision are — appropriately and thankfully — far more nuanced.
- First, the Court did not address race and party in the “American South.” For decades, political scientists have recognized a difference between the “deep South” and the “rim South” with respect to black-white relations. Among other distinctions, there’s more Anglo crossover voting for candidates preferred by the black community in states like Virginia and North Carolina. (Anglo-Latino voting in the rim South also doesn’t always follow the same pattern as Anglo-black voting.) Voting patterns are different locally, and those differences matter in redistricting (see fn 5). Justice Kagan’s opinion discusses the evidence put forward in specific parts of North Carolina. It’s a mistake to assume that the same voting patterns apply elsewhere in North Carolina, much less in Alabama.
- Second, the Court did not say that race and party were proxies for each other. It’s true that the vast majority of African-Americans in North Carolina currently favor the Democratic party (exit polls say about 90% voted for Clinton). But the exit polls also show that only about 63% of Anglo voters in North Carolina voted for the Republican party. As Rick Pildes notes today, that’s a big difference. And it means that even if you assume that an African-American voter is a Democrat, it’s not a very reliable assumption that an Anglo voter is a Republican. (And again, the Latino vote in North Carolina is more complicated still.)
That difference is significant, because it allows courts to make sensible distinctions between action taken because of race and those taken because of party. Where there is a significant population of Anglo Democrats, does it appear that African-American Democratic voters were targeted while Anglo Democratic voters were left alone? Maybe the reason is that decisions were made far more about race than party. (It may also be possible to tell the difference based on where the lines are drawn: since electoral returns are reported by precinct, and racial data is reported by census block, lines that regularly split precincts along racial lines to follow particular census blocks and not others may show that it’s really not party driving the results.)
- Third, it’s not news that the predominant use of race, even to achieve other goals, is constitutionally questionable. Rick H. highlights two footnotes (1 and 7) that critique the intentional and predominant use of race, even when the “real” underlying reason may have been party politics. That approach doesn’t conflate the two. And it’s not new. Legal intent always turns on the means to accomplish some ultimate goal. Even if it’s entirely lawful to try to get rich, it’s not lawful to intentionally steal from someone else in order to do so. Similarly, even if it’s lawful to draw lines for partisan advantage (stay tuned on that front), it’s not lawful to intentionally move voters predominantly based on their race in order to do so. (Or, in the 4th Circuit decision, even if it’s lawful to change election rules for partisan advantage — again, stay tuned — it’s not lawful to target minority voters in order to do so.)
Judge Alex Kozinski clearly explained the distinction in a slightly different context almost three decades ago: “Assume you are an anglo homeowner who lives in an all-white neighborhood. Suppose, also, that you harbor no ill feelings toward minorities. Suppose further, however, that some of your neighbors persuade you that having an integrated neighborhood would lower property values and that you stand to lose a lot of money on your home. On the basis of that belief, you join a pact not to sell your house to minorities. Have you engaged in intentional racial and ethnic discrimination? Of course you have.” The ultimate goal — not to lose money — doesn’t change the fact that the hypothetical homeowner intentionally treated minority buyers differently.
So if the Court didn’t broadly conflate race and party, what did it do?
Actually, the opinion is pretty narrow. It recognized that the evidence presented below was enough to let a court conclude that NC legislators moved people into or out of districts predominantly based on race, and without any good reason. (It also recognized that that was a really close call, particularly with respect to district 12, and that courts could – and did – reasonably disagree. There’s a lot in the opinion about the standard of review. Courts don’t establish truth — they test whether particular litigants have made their case or not.)
The court also recognized that despite citing the VRA, NC legislators didn’t do their homework in figuring out whether the VRA really required packing minorities into two districts — perhaps because they weren’t actually interested in figuring out whether the VRA really required what they did. As I’ve written before, this is a trend that ties North Carolina to Alabama and Virginia … and several other states this cycle.
There’s also two more helpful nuggets that Rick P. pointed out: the Court explained that alternative maps can serve as evidence of a violation, but need not be produced in every case. If the question is really about the intent of the legislature, that seems unquestionably right. And the Court confirmed (p. 16) that crossover districts could satisfy the VRA: just because a plaintiff needs to be able to draw a majority-minority district to come into court doesn’t mean that majority-minority districts are the only available remedy. I’ve also written about why that’s precisely right — and in keeping with the VRA’s focus on facts rather than assumptions.
This is, to me, good news. Just good news for different reasons than Rick H.’s assessment.