Two North Carolina congressional districts, District 1 and District 12, have – as Justice Elena Kagan observed today – “quite the history before” the Supreme Court. In the last 25 years, the districts have been at the heart of four earlier racial gerrymandering cases at the court. Last year, a three-judge district court invalidated both of the districts, on the ground that state legislators had illegally packed the districts with African-American voters, which in turn reduced the influence of African-American voters in other districts. The Supreme Court today upheld that decision, in a major ruling on racial gerrymandering.
In her opinion for the court, Kagan explained that racial gerrymandering challenges like this one boil down to two questions. First, was race the predominant factor behind the legislature’s decision to move voters in or out of a district? And if it was, can the state show that it had “good reasons” to believe that it would violate the Voting Rights Act if it didn’t use race to draw the districts? Kagan noted that the Supreme Court’s inquiry on the first question is relatively limited, because it only reviews a district court’s findings of fact – such as whether race played a predominant role – to determine whether they are clearly wrong. Therefore, a district court’s finding can survive as long as it is “plausible,” even if the justices might reach a different conclusion.
Located in the northeastern part of the state, District 1 has been likened to an octopus, with a body that starts at the state’s border with Virginia and tentacles that stretch west, south and east. Writing for the court, Kagan explained that, before drawing the boundaries of District 1, the state’s map makers “purposefully established a racial target: African-Americans should make up no less than a majority of the voting-age population.” But fulfilling this goal, she continued, resulted in a “district with stark racial borders. Within the same counties, the portions that fall inside District 1 have black populations two to three times larger than the portions placed in neighboring districts.” “Faced with this body of evidence,” she determined, the district court was not clearly wrong in “finding that race predominated in drawing District 1. Indeed,” she continued, “as all three judges recognized, the court could hardly have concluded anything but.”
Turning to the second part of the court’s inquiry, Kagan found that the state did not have “good reasons” to believe that it had to either consider race or risk violating the VRA with its redistricting plan. In fact, she pointed out, the state had “no reason” at all to think that it needed to increase the number of black voters in District 1, because the district had consistently elected – often by “landslides” – minority representatives. The Supreme Court, Kagan acknowledged, has made clear that states are entitled to some leeway in redistricting. But even so, she emphasized, District 1 still cannot survive.
North Carolina’s District 12 has been described as “serpentine”: As the court explained today, it “begins in the south-central part of the State (where it takes in a large part of Charlotte) and then travels northeast, zig-zagging much of the way to the State’s northern border.” The only question before the justices was whether race was a predominant factor in drawing the district, as the challengers alleged. The state countered that race didn’t play any role in the maps; instead, the legislature drew the district to pack it with Democrats, many of whom happen to be African-Americans. Given the close correlation in many places between race and party affiliation, Kagan suggested, district courts may face a “formidable” task in ferreting out the legislature’s actual motives when states raise a partisan defense in a racial gerrymandering case. But here, she stressed, the Supreme Court just has to decide whether the district court was clearly wrong that race, rather than party affiliation, was behind District 12 – and, she concluded, it was not.
The court rejected the state’s argument that the challengers could only prevail in showing that race was a predominant factor if they provided their own example of a map that would have achieved the legislature’s goals without shifting so many African-Americans into the district. Kagan acknowledged that such maps can be helpful, but she emphasized that they are not the only way to show that race was a predominant factor in redistricting.
Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Anthony Kennedy, disagreed strenuously with the majority’s conclusions about District 12. (The court’s newest justice, Neil Gorsuch, was not yet on the bench when the case was argued last year and did not participate in the ruling.) This means that the crucial fifth vote to uphold the district court’s ruling invalidating District 12 came from Justice Clarence Thomas, whom many regard as one of the court’s most conservative justices.
In Alito’s view, the court’s 2001 decision in another challenge to District 12 should have required the challengers to provide their own map. Alito lamented that a Supreme Court ruling “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.” Mandating an alternative map, he reasoned, “is a logical response to the difficult problem of distinguishing between racial and political motivations when race and political party preference closely correlate.” And in any event, he continued, the record in this case makes clear that race did not play a predominant role.
More broadly, Alito warned that today’s ruling confusing “a political gerrymander for a racial gerrymander” “illegitimately invades a traditional domain of state authority” and creates a real risk that “the federal courts will be transformed into weapons of political warfare.” Voting rights activists may disagree with this characterization of the court’s opinion, but there can be little doubt that it does indeed open the doors to more racial gerrymandering challenges.