The Supreme Court this morning, in Cooper v. Harris, struck down North Carolina’s Congressional map on the grounds that two districts (District 1 and District 12) were unconstitutionally based on race. The 5-3 opinion was written by Justice Kagan; Justice Thomas joined with the court’s liberals in the majority, while Justices Alito, Roberts, and Kennedy dissented in part. (Justice Gorsuch did not participate, as the case had already been argued, and one more vote would not change the outcome). Naturally, the media spin on this decision is knee-jerk characterizations of Republicans as racist, but the actual issues here are about the collision between two irreconcilable visions of district-drawing: (1) the prohibition on considering race in drawing district lines, and (2) the liberal view that the Voting Rights Act requires race to be considered in order to draw “majority-minority” districts. The decision illustrates the “heads I win, tails you lose” nature of the liberal attack on Republican – but only Republican – gerrymandering, as the Court had previously upheld similar actions taken by North Carolina Democrats.
Now, let’s be blunt: in gerrymandering cases, nearly nobody cares about anything but advancing their party’s odds of winning elections. Justice Thomas has been virtually alone in taking the principled line, regardless of whose partisan ox is being gored or what the Court has done previously, that racial gerrymandering is virtually always unconstitutional. Specifically, Thomas’ longstanding view is that the Fourteenth Amendment’s Equal Protection Clause imposes “strict scrutiny” (a standard that is nearly impossible to satisfy) when districts are drawn with race primarily in mind, and that this includes districts drawn to create “majority-minority” districts (Thomas believes that the VRA does not require any such thing). The Court’s opinion doesn’t go that far, but it does advance the judicial grounds for throwing out racial gerrymanders, and it effectively overturns a 2001 decision, known as Cromartie II, that had upheld nearly the same District 12. Because Thomas thought Cromartie II was wrong at the time, and because the result in Cooper would be the same as the dissent in Cromartie II (i.e., deferring to what the trial court decided), he had no qualms joining the majority and staying consistent.
But the Court’s approach telegraphs its intention to preserve racial gerrymandering when Democrats do it, just not Republicans. The Court has been hearing challenges to North Carolina’s district borders every decade since the 1980s, so some history is in order. In Cromartie I, in 1999, the Court first faced a challenge to District 12, which had been created by the Democrat-controlled state legislature and was defended in court by Democratic Governor Jim Hunt. The Democrats defended District 12 on the grounds that they had been motivated by partisanship, not race; the Court, in an opinion by Justice Thomas, concluded that the Democrats’ evidence that black North Carolinians tended to vote Democrat was enough to require a trial on the factual question of whether race was the predominant motive, rather than partisanship:
Our prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact…Evidence that blacks constitute even a supermajority in one congressional district while amounting to less than a plurality in a neighboring district will not, by itself, suffice to prove that a jurisdiction was motivated by race in drawing its district lines when the evidence also shows a high correlation between race and party preference.
Justice Stevens, joined by Justices Breyer and Ginsburg (both of whom joined today’s opinion) and Souter, wrote separately in Cromartie I, but agreed at the time that
The record supports the conclusion that the most loyal Democrats living near the borders of District 12 “happen to be black Democrats,”…and I have no doubt that the legislature was conscious of that fact when it enacted this apportionment plan. But everyone agrees that that fact is not sufficient to invalidate the district.
The trial court ruled against the Democrats, finding that District 12’s boundaries were motivated by race, noting a few additional items of evidence, the last two of which centered on the focus on race by Roy Cooper, now the Democratic Governor of North Carolina:
(1) that “the legislators excluded many heavily-Democratic precincts from District 12, even when those precincts immediately border the Twelfth and would have established a far more compact district,”…”more heavily Democratic precincts … were bypassed … in favor of precincts with a higher African-American population”; (2) that “[a]dditionally, Plaintiffs’ expert, Dr. Weber, showed time and again how race trumped party affiliation in the construction of the 12th District and how political explanations utterly failed to explain the composition of the district,”; (3) that [the Democrats' expert's] testimony was “ `unreliable’ and not relevant,”; (4) that a legislative redistricting leader, Senator Roy Cooper, had alluded at the time of redistricting “to a need for `racial and partisan’ balance,”; and (5) that the Senate’s redistricting coordinator, Gerry Cohen, had sent Senator Cooper an e-mail reporting that Cooper had “moved Greensboro Black community into the 12th, and now need[ed] to take [about] 60,000 out of the 12th.”
The case came back to the Court in 2001 in Cromartie II. The Clinton Administration filed a brief defending the gerrymander, arguing that it was entirely reasonable for Democrats to gerrymander on racial lines so long as they were motivated by partisanship:
The crucial and uncontroverted fact is that in North Carolina African-Americans reliably vote overwhelmingly-90% or more-for Democratic candidates. Accordingly, any district that, like District 12, is drawn to concentrate reliable Democratic voters will tend as well to concentrate African-American voters. The evidence on which the district court relied that District 12 is unusually shaped in a way that tends to correspond with race thus tends only to frame the question-whether the district was drawn with race or political motives as predominant-but not to answer it. The district court also relied on evidence showing that District 12 fails to include some precincts with high Democratic registration figures. But in a State like North Carolina, in which registered Democrats frequently vote Republican, that evidence is entirely consistent with the legislature’s professed desire to create a district that would be solidly Democratic on election day, and it provides no basis for doubting the State’s professed political motive.
In a 5-4 opinion written by Justice Breyer and joined by Justices Ginsburg, Stevens, Souter and O’Connor, the Court in Cromartie II effectively threw out the verdict, defending to the hilt the Democrats’ right to gerrymander for partisan advantage by means of race:
The critical District Court determination…consists of the finding that race rather than politics predominantly explains District 12’s 1997 boundaries. That determination rests upon three findings (the district’s shape, its splitting of towns and counties, and its high African-American voting population)…Given the undisputed evidence that racial identification is highly correlated with political affiliation in North Carolina, these facts in and of themselves cannot, as a matter of law, support the District Court’s judgment….We concede the record contains a modicum of evidence offering support for the District Court’s conclusion. That evidence includes the Cohen e-mail, Senator Cooper’s reference to “racial balance,” and to a minor degree, some aspects of Dr. Weber’s testimony. The evidence taken together, however, does not show that racial considerations predominated in the drawing of District 12’s boundaries. That is because race in this case correlates closely with political behavior. The basic question is whether the legislature drew District 12’s boundaries because of race rather than because of political behavior (coupled with traditional, nonracial districting considerations). It is not, as the dissent contends…whether a legislature may defend its districting decisions based on a “stereotype” about African-American voting behavior. And given the fact that the party attacking the legislature’s decision bears the burden of proving that racial considerations are “dominant and controlling,” ..given the “demanding” nature of that burden of proof…and given the sensitivity, the “extraordinary caution,” that district courts must show to avoid treading upon legislative prerogatives…the attacking party has not successfully shown that race, rather than politics, predominantly accounts for the result…
The Court’s conservatives dissented, mainly on the grounds that the question of motive was properly up to the trial court to decide, not an appeals court that didn’t hear the witnesses live. The Cromartie II Court also faulted the plaintiffs for not offering an alternative that would solve the racial issue while helping Democrats just as much:
We can put the matter more generally as follows: In a case such as this one where majority-minority districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance. [The plaintiffs challenging the district] failed to make any such showing here.
At the time, the Court’s liberal wing was very solicitous of protecting the Democrats’ right to pack District 12 with black voters for partisan purposes; today, it announces what in practice is a very different standard, jettisoning the requirement that the challenging party “must show” an alternative path to the same partisan ends in order to overturn a map on grounds that the partisan motive was really mainly about race:
[I]t does not matter in this case, where the plaintiffs’ introduction of mostly direct and some circumstantial evidence—documents issued in the redistricting process, testimony of government officials, expert analysis of demographic patterns—gave the District Court a sufficient basis, sans any map, to resolve the race-or-politics question. A plaintiff ’s task, in other words, is simply to persuade the trial court—without any special evidentiary prerequisite—that race (not politics) was the “predominant consideration in deciding to place a significant number of voters within or without a particular district.”…[A] plaintiff will sometimes need an alternative map, as a practical matter, to make his case. But in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail.
Justice Alito’s dissent on this point called this “a stunning about-face” and fumed, “[a] precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin— to be used once and then tossed in the trash. But that is what the Court does today…”
The 2010 redistricting had beefed up the black portion of Districts 1 and 12, which turned both into “majority-minority” districts, a factor the Cromartie II Court had considered important. That move was, of course, to the advantage of Republicans (as the expert who drew the map testified), just as the maps in Cromartie II had been to the advantage of Democrats, in each case looking at the extraordinarily well-known and undisputed propensity of black voters in North Carolina to vote Democrat. The North Carolina Republicans argued that creating majority-minority districts was demanded by the VRA, and as Justice Alito noted, this statement was perhaps not entirely sincere, being intended to rebut public charges of partisanship, yet the Justices who took Republican statements about complying with the VRA to be damning were the same ones who brushed off Roy Cooper’s statements about considering race in Cromartie II. As liberal election lawyer Rick Hasen notes, the Court adopts a decidedly different standard now (with Republicans running most Southern statehouses) than it did when Democrats like Cooper and Clinton were arguing that race was a legitimate proxy for partisan gerrymanders:
Despite Justice Kagan’s attempt to explain this as a ho-hum deference to a judicial finding of fact, there are two bombshells in footnotes in the case. Recall that with District 12 the question is race or party, as though these are two separate categories. And in the body of the decision Justice Kagan says it will defer to the trial court’s decision that it is race and not party…But in Footnotes 1 and 7, the Court explains that in places where race and party overlap so much they can be treated as proxies for one another…Here’s part of Footnote 1: “A plaintiff succeeds at this stage even if the evidence reveals that a legislature elevated race to the predominant criterion in order to advance other goals, including political ones.” And here is Footnote 7: “As earlier noted, that inquiry is satisfied when legislators have“place[d] a significant number of voters within or without” a district predominantly because of their race, regardless of their ultimate objective in taking that step…So, for example, if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests—perhaps thinking that a proposed district is more “sellable” as a race-based VRA compliance measure than as a political gerrymander and will accomplish much the same thing—their action still triggers strict scrutiny…In other words, 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…
Holy cow this is a big deal. It means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting. This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts….This race and party as proxies for one another…was also the theory used by the 4th Circuit in holding that North Carolina passed its strict voting law with racially discriminatory intent.
The Republicans’ VRA-compliance argument was set against the backdrop of efforts to please longstanding Justice Department demands for more majority-minority districts:
The State’s preclearance submission to the Justice Department indicated a similar determination to concentrate black voters in District 12. “One of the concerns of the Redistricting Chairs,” North Carolina there noted, had to do with the Justice Department’s years-old objection to “a failure by the State to create a second majority minority district” (that is, in addition to District 1)…The submission then went on to explain that after considering alternatives, the redistricters had designed a version of District 12 that would raise its BVAP to 50.7%. Thus, concluded the State, the new District 12 “increases the African-American community’s ability to elect their candidate of choice.”..In the District Court’s view, that passage once again indicated that making District 12 majority-minority was no “mere coincidence,” but a deliberate attempt to avoid perceived obstacles to preclearance.
Damned if you don’t (do what the Justice Department demands in order to preclear the district), but damned if you do, too. The Court noted that “we have long assumed that complying with the VRA is a compelling interest,” but then laid down its main argument: that the districts in question weren’t needed under the VRA because the district lacked a history of white “bloc voting”:
For most of the twenty years prior to the new plan’s adoption, African-Americans had made up less than a majority of District 1’s voters; the district’s BVAP usually hovered between 46% and 48%…Yet throughout those two decades…District 1 was “an extraordinarily safe district for African-American preferred candidates.”…a meaningful number of white voters joined a politically cohesive black community to elect that group’s favored candidate.
In the context of a state where black voters are reliable Democrats and white voters lean Republican (but moreso in some parts of the state than others), this standard translates as “it’s OK when Democrats do it.” After all, if white voters are voting with a bloc of Democrats for Democratic officeholders, Democrats can consider the race of black voters to tilt the map in the Democrats’ favor, and Republicans can’t consider the exact same factors about the exact same voters. In other words: majority-minority districts are allowed as a solution only if the problem is white voters voting Republican. Heads they win; tails you lose.