Symposium: Bringing sanity to racial-gerrymandering jurisprudence

Anita Earls is the executive director of the Southern Coalition for Social Justice. She serves as counsel for the plaintiffs in two pending racial-gerrymandering cases, Dickson v. Rucho and Covington v. North Carolina, as well as a pending partisan-gerrymandering case, League of Women Voters v. Rucho.

For all the rhetorical flourishes back and forth between Justice Elena Kagan’s opinion for the majority and Justice Samuel Alito’s opinion concurring in part and dissenting in part, the Supreme Court’s ruling in Cooper v. Harris is not a watershed development in the theory of racial gerrymandering. Two of the central legal questions answered there had been answered in prior cases.

With regard to North Carolina’s Congressional District 1, which the legislature argued was justified as a race-based district because it was drawn to comply with Section 2 of the Voting Rights Act, the court applied Bartlett v. Strickland and Thornburg v. Gingles, to come to the unremarkable conclusion that absent evidence of the third prong of Gingles, the legislature was not justified in dramatically increasing the number of majority-black districts in the state. In other words, where white bloc voting is not usually defeating the candidate of choice of black voters — where coalition districts are working — the Voting Rights Act does not demand the creation of majority-black districts.

With regard to Congressional District 12, which the legislature defended as based on partisan factors, not race, the court followed Anderson v. Bessemer City to apply a clear-error standard of review to factual findings, and looked to Alabama Legislative Black Caucus v. Alabama and Bethune Hill v. Virginia Board of Elections for what a plaintiff must prove to establish that race was the predominant consideration in drawing a district. Indeed, reaching back to Arlington Heights v. Metropolitan Housing Development Corp., the court reminded us that “in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail.”

The dissent insists that Cromartie II requires a plaintiff in a racial-gerrymandering case to prove that an alternative districting plan exists that has the same partisan impact without the same racial demographics. The biggest elephant in the room here is the fact that the 2016 congressional redistricting plan enacted by the North Carolina General Assembly as a remedy for the Shaw v. Reno violation does just that. The state sent back to Congress ten Republicans and three Democrats, just as they had in 2014, and by all measures of partisan impact, the 2011 plan is only slightly more favorable to Republicans than the 2016 plan. All of that was known by the time this case was argued last December.

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.

The redistricting decisions this decade from Alabama, Virginia and North Carolina together provide a road map for what plaintiffs need to prove to establish that race predominates in the drawing of a district, and, by implication, what legislatures need to avoid doing when enacting a plan. For legislatures, the lessons include: First, mechanical racial targets are a really bad idea. Just don’t do it. Second, diluting the voting strength of voters based on their race by cracking geographically compact concentrations of black, Latino, Asian or Native American voters is still a violation of Section 2 of the Voting Rights Act. Third, diluting the voting strength of racial minority voters by packing them in high concentrations in as few districts as possible is unconstitutional even if done for partisan reasons. Importantly, as the court made clear this term in Bethune-Hill, plaintiffs do not have to prove there is an “actual conflict” between racial considerations and traditional redistricting principles. A geographically compact district may still be a racially gerrymandered district.

Looking forward, we expect action soon on the two redistricting cases from North Carolina still pending before the Supreme Court, Dickson v. Rucho and Covington v. North Carolina. Given that all eight justices in Cooper agreed that Congressional District 1 was unconstitutional, based on the fundamental legal error that the legislature made in concluding that the Voting Rights Act required them to draw districts with 50 percent or greater black voting age population wherever possible, North Carolina’s racially gerrymandered legislative districts drawn in reliance on the same legal error simply cannot pass muster.

Litigation over North Carolina’s congressional districts now turns to the very different and unsettled waters of partisan gerrymandering. Two cases are poised to go to trial on June 26 before a three-judge court on the issue of whether the 2016 congressional districts are an unconstitutional partisan gerrymander, one raising an efficiency gap theory and the other raising a First Amendment theory. The Cooper opinion helps highlight some of the important distinctions between an unconstitutional racial gerrymander and the various theories of liability being advanced to establish a partisan gerrymander. As tired as the court may be of redistricting litigation this decade, there is still work to be done.