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The Supreme Court has made it overwhelmingly clear that when states draw new boundaries for electoral districts after the 2020 census, they must have a strong justification if they want to use race as a factor.
In a significant ruling earlier this week in a case called Cooper v. Harris, the high court threw out two congressional districts in North Carolina after determining Republican lawmakers improperly packed African-American voters into them. The decision, authored by Justice Elena Kagan, was the latest in a series of recent rulings from the court showing an unmistakable skepticism from the justices on the practice.
States redraw electoral districts every 10 years after a new census. The Constitution prohibits lawmakers from using race as the predominant factor in redistricting considerations, but the Voting Rights Act allows them to take race into account to a certain extent, in order to protect the voting influence of minorities. That leaves courts to figure out if race was improperly or too overwhelmingly used when lines are redrawn.
The North Carolina decision is unlikely to prompt a flood of new litigation before the next redistricting cycle. But experts say that it puts states on notice for when they draw new lines that could dilute the votes of minorities.
The court is sending a clear signal that states needed to “be careful” and “do their homework” when using race as a factor in drawing district boundaries, said Justin Levitt, a professor at Loyola Law School in Los Angeles who served as deputy assistant attorney general in the Department of Justice Civil Rights Devision from 2015 to 2017.
“The use of race in redistricting requires some precision tools, and legislatures in this last cycle were operating with blunt machinery. Sometimes intentionally, and perhaps sometimes unintentionally, but what the court is essentially doing is telling them to stop it,” he said. “You have precision tools, do your homework.”
“The use of race in redistricting requires some precision tools, and legislatures in this last cycle were operating with blunt machinery.
Levitt noted the North Carolina case fit in with recent Supreme Court gerrymandering decisions dealing with districts in Virginia and Alabama. In March, the court largely sided with Democratic plaintiffs in a case that charged that Virginia lawmakers had placed too much emphasis on race when drawing district lines. In 2015, the Supreme Court ruled Alabama lawmakers too had given unfair weight to race when drawing district lines in a 2012 state redistricting.
“I think this is one of a series of cases from the 2010 round of redistricting that give plaintiffs more tools to challenge unconstitutional racial gerrymanders,” Richard Pildes, an election law expert and professor at NYU Law School, wrote in an email of the North Carolina case.
Former Attorney General Eric Holder, who is now leading the National Democratic Redistricting Committee, a redistricting reform effort, called the latest decision a “watershed moment in the fight to end racial gerrymandering,” in a statement Monday. The group will use the ruling to challenge future gerrymanders, said Marc Elias, who argued both the Virginia and North Carolina cases at the Supreme Court in December and is an NRDC senior adviser.
“This builds upon Supreme Court precedent striking down racial gerrymandering in North Carolina and twice in Virginia. Based off this ruling, the National Democratic Redistricting Committee will aggressively pursue new cases to end similar illegal racial gerrymandering in other states,” he said.
One significant aspect of the North Carolina decision was that the majority opinion turned down North Carolina’s argument that it needed to pack black voters into one congressional district in order to comply with the Voting Rights Act. The landmark 1965 law says states cannot block the ability of minority voters to elect a preferred candidate. North Carolina ― echoing a strategy employed by other southern states ― said this was why they increased the number of black voters in the district to over 50 percent.
The Supreme Court unanimously rejected the argument for District 1, noting that the district had a history of electing black voters’ preferred candidates even when its black voting-age population was under 50 percent.
“The Court is not going to let jurisdictions use compliance with the Voting Rights Act as an excuse, when what they’re doing has nothing to do with the Voting Rights Act, and more to do with their simply wanting to shift around populations on the basis of race in order to achieve partisan ends,” Ezra Rosenberg, co-director of the Lawyers’ Committee for Civil Rights Under Law, said in an email.
“The Court did not say that any line-drawing that creates a majority-minority district is suspect. And they’re not. What is suspect is when race is the predominate and uncompromising factor, to the exclusion of all else, and there’s no good reason for that to be so,” he said.
In considering the other congressional district in the case, District 12, the court dismissed North Carolina’s argument that politics, not race, was responsible for the gerrymander.
In his dissent, Justice Samuel Alito took issue with the fact that the court didn’t require plaintiffs in the case to provide an alternative map showing the state could have drawn the lines without using race as the predominant factor. The court required an alternate map in a previous challenge to District 12, so not asking for one now was akin to tossing away Supreme Court precedent like a “paper plate or napkin,” Alito said.
Not requiring an alternate map will make it easier to challenge racial gerrymanders, said Rick Hasen, an election law expert and professor at the University of California, Irvine.
The latest decision could immediately impact two race-based gerrymandering cases, one in Texas and a separate one from North Carolina, moving their way through the courts. Both cases call into question whether lawmakers unconstitutionally drew congressional and state legislative maps.
The North Carolina decision came as observers are closely watching a different case out of Wisconsin in which the court is expected to consider whether a gerrymander based on partisanship, not race, was too extreme.
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