Although not breaking new ground, the court’s post-2010 census round of racial gerrymandering cases make clear that while not every district drawn as a majority-black or majority-Latino district is a racial gerrymander subject to strict scrutiny, states seeking to use packing to weaken the voting strength of black or Latino voters cannot hide behind the Voting Rights Act to do so.
Most importantly, this line of cases, and particularly Kagan’s opinion in Cooper, should put to rest the false dichotomy of “is it race or is it party” that threatened to turn racial-gerrymandering doctrine into a meaningless standard. The census data puts racial data squarely in front of legislators enacting redistricting plans. In most states, election returns showing past voting patterns are also routinely in front of legislators. Party affiliation and voting patterns are also almost everywhere correlated to race. In the absence of direct “smoking gun” evidence of legislative intent, teasing out legislative motive from a binary framework of deciding whether race or party was the predominant factor is an abstraction that does not reflect the real world.
The court’s opinion in Cooper makes clear the common-sense understanding that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.” The equal protection clause does not have a partisanship exception. State legislators cannot intentionally assign voters to districts on the basis of their race as long as they ultimately want a particular partisan result. So race may predominate even if the legislature’s ultimate goal was a partisan one. Had the court gone the other way on this question, we would face a situation in which when white voters bring a racial gerrymander claim (the 1990s cases), race is the predominant factor, but when black voters bring the claim (the cases from 2010 through this term), party is thought to predominate. That “heads I win, tails you lose” outcome would have been manifestly unjust.