The North Carolina redistricting case — political warfare by judicial means

Modern voting rights cases involving redistricting can be thought of as a tale of two dilemmas — one legal, one political. The legal dilemma is this: if a state legislature takes race into account in drawing districts, its action is subject to challenge under the Equal Protection Clause of the Constitution; but if it doesn’t take race into account, its action is subject to challenge under the Voting Rights Act.

The Supreme Court has tried to address this dilemma by holding that race normally cannot be the predominant factor in redistricting, but can be one factor so as to ensure compliance with the Voting Rights Act. Hans von Spakovsky has this in mind when he speaks of the Goldilocks principle of redistricting.

The political dilemma stems from the desire of Democrats to send lots of African-Americans to legislatures without undercutting white Democratic candidates. To satisfy the desire for black legislators, private litigants on the left and their allies in the Justice Department traditionally insisted on the creation of majority-minority districts — that is, districts with an actual majority of black voters. To be on the safe side, says von Spakovsky, they usually pushed for districts where blacks made up at least 55 percent of the voting population.

However, this quest tended to leave districts with a majority white voting population drained of the black voters needed to elect white Democrats. Hence, the dilemma for Democrats.

Eventually, Democrats figured out that blacks vote for them so reliably, especially if the Democratic candidate is black, that they can create safe districts for blacks without having a majority black population in the districts. Somewhere in the mid-40 percent range will suffice for the purpose of electing blacks. The extra white voters can be spread into surrounding districts to help white Democrats.

The Supreme Court’s recent decision in Cooper v. Harris is best understood in terms of these two dilemmas, especially the political one. Von Spakovsky explains why in this analysis for SCOTUSblog.

The case involved a challenge to two North Carolina congressional districts. The decision striking down one of them was unanimous.

The other district failed by a 5-3 vote, with the four liberal Justices joined by Justice Thomas (Justice Gorsuch did not participate). Thomas believes that race shouldn’t factor into drawing district lines. No Goldilocks principle for him.

In the district over which the Justices divided 5-3, North Carolina lawmakers had increased black voter representation from 43.8 to 50.7. Their stated goal was to help the Republican party. There is no dispute that this is permissible objective or that the plan would advance that objective.

However, Justice Kagan’s opinion viewed this as a “mixed motive” case and held that race cannot predominate as a motive in such cases. In finding that race did, she relied heavily on a few statements indicating that the legislature was concerned with obtaining the Justice Department’s approval (preclearance) under the Voting Rights Act.

The mixed motives, then, were helping Republicans and complying with the Voting Rights Act. Neither is improper. Moreover, helping Republicans surely was the predominant motive, with concern about Justice Department approval stemming, at least in part, from the realization that such approval was necessary if Republicans were to be helped.

As Justice Alito explained in his excellent dissent, North Carolina simply could not redistrict without heeding the Voting Rights Act’s prohibitions and requirements. Thus, “race had to be kept in mind.” To seize on statements by legislators that evince concern with the Voting Rights Act as evidence of improper racial motivation seems perverse.

It should be apparent that Cooper v. Harris doesn’t really fit neatly into the mixed motive framework. Realistically, there was a single motive — elect more Republicans — a means — race — and a potential constraint — the Voting Rights Act/Justice Department.

In other words, for the North Carolina legislature race was a means to a political end, just as it is for the side challenging North Carolina’s action. Thus, Justice Kagan and her liberal colleagues did nothing more than take a side in a political dispute.

Justice Alito nailed it in his dissent. He noted:

If around 90 percent of African-American voters cast their ballots for the Democratic candidate, as they have in recent elections, a plan that packs Democratic voters will look very much like a plan that packs African-American voters.

Thus, upholding, or even entertaining, race-based challenges in this context creates the danger that “the federal courts will be transformed into weapons of political warfare.”

If the majority party draws districts to favor itself, the minority party can deny the majority its political victory by prevailing on a racial gerrymandering claim. Even if the minority party loses in court, it can exact a heavy price by using the judicial process to engage in political trench warfare for years on end.

For Justice Kagan and her liberal colleagues, I’m pretty sure this is a feature of her voting rights jurisprudence in redistricting cases, not a bug.

This view finds further support from three other facets of the case. First and foremost, under the Supreme Court’s decision in Easley v. Cromartie, 532 U. S. 234 (2001) (Cromartie II), plaintiffs challenging a political gerrymander as racially motivated must present an alternative plan that shows “the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles.” That alternative plan must also be shown to have “brought about significantly greater racial balance.”

The plaintiffs in this case did not present an alternative plan. Justice Kagan had no problem with this.

However, Justice Alito stated:

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 in its decision. . .The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district.

Second, as von Spakovsky points out, looking at virtually the same evidence in a parallel case that went through the state courts, the North Carolina Supreme Court found that race was not the predominant factor in the redistricting. State courts are normally given great deference by federal courts when it comes to these types of state issues.

Third, Justice Kagan’s opinion ignores a glaring factual error committed by the federal district court whose ruling she upheld. In essence, the district court relied on a statement of two legislators who pushed the redistricting plan that indicated a racial motive. However, as the Justice Department admitted in its brief opposing the plan, the statements pertained to state legislative districts, not the federal congressional districts at issue in Cooper.

Disregarding precedent, rejecting the deference normally given to state courts, and overlooking factual error — these are among the expected consequences of federal courts transforming themselves “into weapons of political warfare.”

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