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Symposium: The Goldilocks principle of redistricting

Hans A. von Spakovsky is a Senior Legal Fellow and Manager of the Election Law Reform Initiative at The Heritage Foundation and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department. Along with John Fund, he is the co-author of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”

For anyone who seeks clarity in what states must do in redistricting to comply with the Voting Rights Act and the equal protection clause of the 14th Amendment, the Supreme Court’s decision in Cooper v. Harris will certainly not provide it. And this seems to be the umpteenth redistricting case out of North Carolina to get to the Supremes. If the court is in session, there seems to almost always be a North Carolina redistricting case before it.

This ruling simply adds to the confused state of the law on redistricting and how much legislatures can (or must) take into account race when trying to draw up new congressional lines. And it certainly does not provide any real guidance on how to distinguish between race and partisan politics to determine which of those is the driving factor in the redistricting process.

The general rule that the Supreme Court established in 1993 in yet another North Carolina case, Shaw v. Reno, was that race could not normally be the predominant factor in redistricting because that would violate the equal protection clause. However, it could be one factor, to ensure compliance with the Voting Rights Act. If race was the predominant factor, then strict scrutiny applied and a state had to show that the redistricting plan served a “compelling interest” and was “narrowly tailored.” As Justice Elena Kagan points out in the majority opinion in Cooper, a second iteration of the Shaw case in 1996 established that compliance with the Voting Rights Act is considered to be a compelling interest.

At issue in this case are two North Carolina congressional districts, District 1 and the perennial District 12, which as Justice Samuel Alito points out in his partial dissent that was joined by Chief Justice John Roberts and Justice Anthony Kennedy, is making its fifth appearance before the court since 1993. When the state legislature redrew these two districts based on the 2010 census (yes, we are still fighting over districts based on 2010 census data), the districts went from having a black voting age population (BVAP) of 48.6 percent to 52.7 percent, and 43.8 percent to 50.7 percent, respectively. Residents of the districts sued, claiming that the changes were impermissible racial gerrymanders, and a three-judge panel, as well as five of the justices, agreed. (Justice Neil Gorsuch took no part in the case.)

The differences in the way all of these judges looked at the evidence in the case shows how difficult it is to determine how much or how little race actually plays in redistricting, particularly given the monolithic voting patterns of black Americans in their support of the Democratic Party. As Alito says, “[i]f around 90% 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 plans[sic] that packs African-American voters.” Therein lies the dilemma and the confused state of the law, because packing Democrats in a partisan gerrymander is perfectly legal, but packing African-Americans for racial reasons is not.

The federal judges in this case, as well as the justices, split in their conclusion about whether the evidence supported a finding that both districts were drawn for impermissible racial reasons. Alito agreed with the majority in its assessment of District 1, which the state admitted had been drawn as a majority-minority district.

But Alito concluded that the majority’s opinion that District 12 “was drawn predominantly because of race” was wrong: “The record shows that it was not.” Looking at virtually the same evidence in a parallel case that went through the state courts, the North Carolina Supreme Court also disagreed with the majority of justices on District 12, finding that race was not the predominant factor in the redistricting. As Alito says, “the state-court finding illustrates the thinness of the plaintiffs’ proof.”

Which set of judges who reviewed the evidence in this case are we to believe? The state courts that are normally given great deference by federal courts on these types of state issues, along with three of the justices, or the lower-court federal judges and the five other justices who came to a different conclusion after looking at the same evidence? Interestingly, Alito points out a glaring mistake made by the original federal district court that found against the state – a mistake Kagan ignored in her majority opinion.

It turns out the federal district court relied heavily on the statement of two state legislators who led the redistricting effort in support of its racial-predominance conclusion. In that statement, the legislators referred to “constructing [Voting Rights Act] majority black districts,” and because “districts” was plural, the lower court concluded that this was evidence that both District 1 and 12 had been designed to be majority black districts. The court considered that an impermissible purpose despite the requirements of the Voting Rights Act.

The court was apparently unaware that, according to Alito, the statement “was about state legislative districts, not federal congressional districts.” The U.S. solicitor general, in an amicus brief, admitted this mistake, but “the majority, by contrast, tries to ignore this error.” That mistake “shows a troubling lack of precision” by the original federal court.

All of the confusion in this case illustrates that states are in a Catch-22 when it comes to redistricting. The Supreme Court’s own lack of precision has established what I call the Goldilocks Redistricting Rule – states are in trouble if they don’t consider race enough because they will face a Section 2 Voting Rights Act lawsuit, but they will also be in trouble if they consider race too much, because that will be deemed to violate the equal protection clause. The extent to which they rely on race has to be “just right.” And different judges looking at the very same evidence all seem to have different opinions about what is “just right.” Thus, litigants in these cases will largely be dependent on the luck of the draw – which federal judges are assigned to their case.

Of course, another point needs to be made. Ten years ago, litigants on the left side of the political aisle as well as the Civil Rights Division of the U.S. Justice Department consistently pushed for majority-minority districts that had an actual majority of black voters. Depending on the specific turnout and election history of particular districts, they wanted to ensure that black voters would always be able to elect their candidate of choice. Thus, they pushed for districts that had a BVAP upwards of 55 percent or more. Members of the Congressional Black Caucus in particular liked districts with a high BVAP because it made them virtually unbeatable incumbents.

So why would Democratic Party groups and allies now be suing to stop districts in which minority voters are barely a majority, at 52.7 percent and 50.7 percent? Because black voters, as Alito points out, are such a monolithic voting bloc that putting a higher percentage into districts wastes Democratic votes, and specifically hurts the prospects of white Democratic candidates. By reducing the BVAP of districts down to the bare minimum needed to elect black Democrats, those extra voters can be spread into surrounding districts to help white Democratic candidates.

What is behind all of this litigation is pure partisan politics. It has nothing to do with the original purpose of the Voting Rights Act, which was to stop out-and-out racial discrimination in the voting context. In fact, that is why Justice Clarence Thomas voted with the liberal justices to toss out these two districts. He does not believe that race should be a factor at all in redistricting, and he thinks that Section 2 of the Voting Rights Act should not be applied to the type of vote dilution claims that are now routinely made in all redistricting litigation.

One final note on this case that is sure to cause confusion to the challengers of the new plans that will be drawn up after the upcoming 2020 census: As the dissent observes, the Supreme Court established a rule in Easley v. Cromartie (known as Cromartie II), that required those challenging a political gerrymander as racially motivated to present an alternative plan that shows that “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 show that it would have “brought about significantly greater racial balance.”

Yet the majority opinion in this case ruled for the challengers despite the fact that they presented no such alternate plan. This led to Alito’s harshest criticism:

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.

So the Goldilocks Rule remains in place for redistricting, but we don’t really know if the same is true for the Cromartie Rule. All we know for sure is that the lawyers who specialize in redistricting cases are going to remain very busy (and very confused) after the next census.

This case also bears out another warning given by Alito: The majority’s decision threatens to transform federal courts “into weapons of political warfare.” Unless courts exercise extraordinary caution in “distinguishing race-based redistricting from politics-based redistricting,” they will “invite the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena.” Unfortunately, when it comes to redistricting, the federal courts discarded that caution long ago.

Recommended Citation: Hans von Spakovsky, Symposium: The Goldilocks principle of redistricting, SCOTUSblog (May. 23, 2017, 4:43 PM),