Symposium: The court continues winding down unnecessary racial redistricting

Richard H. Pildes is the Sudler Family Professor of Constitutional Law at NYU Law. In 2014, he argued predecessor case Alabama Democratic Conference v. Alabama on behalf of the appellants, and he continues to represent those plaintiffs.

In this decade’s redistricting, the major constitutional development, apart from Shelby County v. Holder, has been the court’s commitment to ensuring that intentional race-based districting not take place except where a strong basis exists for concluding that the Voting Rights Act actually requires it. The first stages were the Alabama cases in 2015, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. Those cases established the foundational principle that states cannot mistakenly invoke the VRA to engage in excessive and unjustified uses of race in redistricting. Thus, race-based districting absent a strong basis for concluding that the VRA requires it violates the Constitution.

As the two racial redistricting cases decided this term — Bethune-Hill v. Virginia Board of Elections from Virginia and now Cooper v. Harris from North Carolina – further reveal, the court simply is not going to permit states to be casual in invoking the VRA to justify race-based districting. Bethune-Hill  added to the Alabama cases by clarifying  an important issue: that a racial gerrymander can exist even when states follow traditional districting principles, if voters have still been predominantly sorted into districts by race. Cooper now adds further bricks to the barrier against unnecessary racial redistricting by holding that the VRA does not require – and the Constitution does not permit – the intentional creation of majority-minority districts if interracial political coalitions are already providing minorities effective electoral opportunities. Remarkably, it is now clear that the justices are unanimous, despite all their other differences, in their commitment to ensuring that, in drawing districts, race not be used in excessive and unjustified ways.

In the larger arc of more than 30 years of “racial redistricting jurisprudence,” one way to understand today’s decision out of North Carolina is that the Supreme Court is continuing a long-running project of winding down unnecessary racial redistricting. Today’s decision reflects the court’s effort to modernize the Voting Rights Act and ensure it is properly adapted to the way the dynamics of race and politics have changed, in some parts of the country, in the many decades since the act first was passed. The crucial fact underpinning today’s decision is that 30 to 40 percent of white voters in parts of North Carolina are willing to cross over and vote for the same candidates that African American voters prefer – and that the VRA must reflect and recognize these changing realities.

Let me situate today’s decision, before turning to its specifics, in the broader context of the Voting Rights Act and how race came to play the role it currently does in the modern era of redistricting.

The regime of Voting Rights Act-required racial redistricting began in the 1990s, in the wake of Congress’ 1982 amendments to the VRA and the Supreme Court’s 1986 decision in Thornburg v. Gingles. But almost immediately after the start of that regime, beginning with the Shaw v. Reno line of cases, the court has been struggling to cabin in and constrain VRA-required race-based districting to circumstances in which it is truly necessary. In an opinion by Justice David Souter back in 1994, Johnson v. DeGrandy, the court wrote that race-based districting under the VRA relies “on a quintessentially race-conscious calculus aptly described as the ‘politics of the second best.’” A majority of the court – confirmed by the parts of today’s opinion that are unanimous – has acted on that view ever since. If the VRA truly requires race-based districting in certain circumstances, that is fine. But the court has been extremely wary of extending the regime of race-based districting anywhere beyond those circumstances.

Over the last 30 years, the court has held that the VRA does not require maximizing the number of minority districts, but only ensuring that minority voters have an equal opportunity to elect their candidates of choice; it has held that the VRA does not require (and the Constitution prohibits) using irregular district shapes to create “minority opportunity” districts; it has held that the VRA does not apply if minorities cannot be made into the majority  in a district. And with ever more force – as in today’s decision – the court has held that the Constitution is violated if jurisdictions use the VRA to engage in race-based districting unless it is clear that the VRA clearly requires doing so. I viewed  developments as moving in this direction back in a 2007 article, The Decline of Legally Mandated Minority Representation, and since then, the court’s efforts to constrain unnecessary race-based districting have become only more forceful.

The most important aspect of today’s decision is the court’s unanimous conclusion that Congressional District 1 is an unconstitutional racial gerrymander. It would be easy to miss that the court is  unanimous here, because the court divided 5-3 on a second district at stake, CD 12. But the most important issue in the North Carolina case, as I have long said, involves CD 1, so the court’s unanimity here is particularly striking.

With respect to CD 1, the critical point is that the court rejected North Carolina’s argument that the VRA required it to create a majority-black district to make sure black voters had equal political opportunity. More specifically, the court concluded that voting in this area was not racially polarized enough to require the remedy of a majority-black district.

What does it mean for voting to be racially polarized? This has been a key concept under the VRA, and yet – until today — the court has given the concept almost no significant attention.

When racially polarized voting first entered this area of the law, the paradigm of racial polarization was simple: If 90 percent of blacks vote for one candidate and the overwhelming majority of whites vote for the opposing candidate (especially when the former candidate is black), there is a clear pattern of RPV. But what happens when – as in North Carolina today – roughly 30 to 40 percent of whites are willing to vote for minority candidates? In 2008, for example, Barack Obama won slightly less than 40 percent of the white vote in the state. Because the VRA is only triggered in the redistricting area when voting is racially polarized, should RPV still be considered to exist in North Carolina when there is this level of white crossover voting support? If the VRA still applies, how does it apply when we no longer have in North Carolina the extreme and stark racial polarization of earlier decades?

Here is how the court resolved these issues as they came  to bear in CD 1: For the last 20 or so years, there was enough white crossover voting support that even though the district had a black population of only 46 to 48 percent, it overwhelmingly and repeatedly elected a black member of Congress – typically, with 70 percent of the vote. Yet North Carolina took the view that the VRA required pumping up the black population above 50 percent to be sure the district was “safe” in ensuring for black voters an equal opportunity. But the court held today that voting cannot be considered racially polarized if there is enough white crossover support that black candidates are being elected from districts that are less than 50 percent black.

This conclusion is of great significance in further unwinding unnecessary racial redistricting. It means that the mechanical creation of majority-minority districts will no longer be constitutionally tolerated. If a cohesive black community can get its preferred candidates elected in districts that are, perhaps, only 35 to 40 percent black, then pumping those districts up to more than 50 percent black – on the view that the VRA requires it – will be unconstitutional. This opens up much more space for the creation of what I have called coalitional or crossover districts, in which black and white political coalitions unite behind the same candidates. Indeed, as the court today recognized, it would turn the VRA on its head if the law actually required – as North Carolina insisted it did – that these kind of effective coalitional districts had to be turned into majority-black districts, just to ensure they are sufficiently “safe.”

Put in other terms, the decision confirms that states must adhere to the view that the intentional creation of majority-minority districts is a “second best” remedial device, to be used only where clearly required. Indeed, important parts of the opinion further emphasize that, when engaged in race-based districting, states must do a thorough job of demonstrating that doing so is necessary – “the State must carefully evaluate” whether the facts support this, and the state must engage in a “meaningful legislative inquiry” about whether doing so is necessary.

There are other aspects of today’s decision that will also be important in enforcing constitutional constraints on the excessive and unjustified use of race in redistricting. The court said, once again, that  the setting of “a racial target” that has a direct impact on the design of a district means that strict scrutiny is triggered and the district can survive only if the VRA requires it.

Once again, the court confirmed that if the state intentionally sorts voters by race into districts, the state cannot hide behind the argument that its ultimate goal was to pursue an effective partisan gerrymander. To the extent partisan gerrymandering is constitutional, states can sort voters by their voting patterns, but not by their race. As the court has said before, race cannot be used as a “proxy” for political voting preferences. To be sure, this can create a mess for the lower courts if a state does not directly and obviously use race to sort voters; the courts then have to sort out whether it was “really” race or partisan factors that drove the district’s design. (I have long argued that it makes little sense for the court to impose constitutional constraints on racial gerrymandering, but not partisan gerrymandering.)

There is still more in today’s decision: The court held that plaintiffs in these Alabama cases do not have to provide their own alternative map (which can be a costly and time consuming venture) in order to be able to prove that a jurisdiction has engaged in race-based districting. And there had been a confusing couple of sentences in an earlier case, also from North Carolina, that had befuddled the lower courts; the court today confined those sentences to the particular facts of that one case, as Justice Clarence Thomas, who joined the majority, pointed out. That is all to the good as well.

In every aspect of today’s decision today, then, the court built on the Alabama line of cases further and made it all the more clear that the court will aggressively police the role of race in redistricting, will not permit the VRA to become a vehicle for excessively packing black voters into districts, and will continue the project of unwinding unnecessary race-based districting.