By Neelesh Moorthy | October 4, 2017

Introduction

In May 2017, the Supreme Court struck down two North Carolina congressional districts (CD1 and CD12) as unconstitutional racial gerrymanders. The State argued regarding CD1 that race-based redistricting was done to comply with sections two and five of the Voting Rights Act of 1965. This defense reflected an inherent tension in the Court’s jurisprudence: simultaneously condemning race-based redistricting while mandating it in certain circumstances. Responding to CD12, North Carolina argued that they engaged in partisan, rather than racial, gerrymandering.

The Supreme Court rejected both arguments, unanimously for CD1 but split 5-3 with regards to CD12. This article argues that the Court reached the correct outcome for CD1, but ignored its own precedent when evaluating CD12.

Whatever one thinks of the outcome of this case, however, North Carolina redistricting is not free from legal contestation. The drafters of CD12 openly acknowledged districting was done to serve Republican interests and promote Republican candidates. Next term, the Supreme Court will consider a case out of Wisconsin, Gill v. Whitford, addressing whether partisan gerrymanders can be unconstitutional. The Court’s decision in that case could have significant implications for districting in North Carolina. Already, the Middle District Court for North Carolina has refused to invalidate congressional maps on a partisan-gerrymandering basis, citing the Supreme Court’s inability to find a suitable legal standard.[1]

This review ultimately argues that the best course of action for the Court would be to find political gerrymandering cases nonjusticiable. The Court should do so both because of the difficulty in finding a proper legal standard and the likely politicization of the courts these lawsuits would bring.

Background

The congressional districts at issue in Cooper v. Harris were congressional districts one and twelve (CD1 and CD12). After the 2010 census, the North Carolina General Assembly began the redistricting process pursuant to the North Carolina Constitution. Senators Bob Rucho and Representative David Lewis, both Republicans, engaged Dr. Thomas Hofeller to create the new maps. The revised boundaries were eventually adopted in July 2011. Several lawsuits were then filed against the drafters for unconstitutional racial gerrymandering. At issue was the fact that the two districts’ “black voting age population” had jumped from 47.76 percent to 52.65 percent in CD1 and from 43.77 percent to 50.66 percent in CD12.[2]

North Carolina makes no secret that it used race to design CD1. Rucho and Lewis in fact have publically stated they did so to avoid liability under sections two and five of the VRA. Section two prohibits electoral laws leading to a situation where minorities have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Section five prevents “covered jurisdictions” from adopting any change that would diminish the ability of a minority group to elect their “preferred candidate of choice.” The latter is known as the “retrogression” standard, because it deals with changes to electoral laws, whereas section two deals with challenges to existing laws.[3]

The question for the Supreme Court was not whether race was the “predominant factor” in the redistricting effort, because the State admitted as much.[4][5] They had to decide whether the state could justify its use of race under a strict scrutiny standard, requiring a compelling state interest and measures narrowly tailored to achieve that end.  The Supreme Court unanimously found that the State could not meet this high threshold, and it was correct to do so.

But CD12, North Carolina argued, was a different beast. The State argued that redistricting here was done primarily on the grounds of partisan, not racial, gerrymandering. Here, the Supreme Court faced the harder task of determining in the first place whether race was the “predominant factor” in redistricting. The Court found that it was, but this time with a dissent authored by Justice Samuel Alito and joined by Justice Anthony Kennedy and Chief Justice John Roberts. Had the Supreme Court properly read its precedent, the dissent would have carried the day.

Congressional District 1

The most salient issue debated between the parties here was whether the creation of majority-minority districts could survive strict scrutiny because it was done to comply with sections two and five of the VRA. The Supreme Court was correct to rule that North Carolina could not pass this test.

To understand why, a dive into Court precedent is necessary.

In a 1986 case, the Court clarified in Thornburg v. Gingles the parameters of section two. It identified three prerequisites before a plaintiff could successfully claim a violation of section two:

1. The minority group must be “sufficiently large and geographically compact to constitute a majority in a single-member district”
2. The minority group is “politically cohesive”
3. If Whites voted as a bloc in the district, this would be sufficient to “usually defeat the minority’s preferred candidate.[6]”

The converse of that ruling is that only if those standards are met is the state likely to succeed in using section two of the VRA as a justification to create majority-minority districts. There can’t be a remedy without a problem to solve. This latter point is evident in the 1995 case Miller v. Johnson and the 1996 case Shaw v. Hunt.

Miller v. Johnson dealt with what was then DOJ policy to mandate majority-minority districts. In response to the DOJ’s policy, the Georgia General Assembly made an active effort to add an additional such district to its map. But the Court wrote that “compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws.[7]” And in Shaw v. Hunt, the Court found racial gerrymandering impermissible because the district being altered was not “geographically compact” enough to satisfy the Gingles factors.[8]  Also see Bartlett v. Strickland: “majority-minority districts are only required if all three Gingles factors are met and if §2 applies based on a totality of the circumstances.[9]”

When the Gingles preconditions are not met, using section two as a strict scrutiny defense is unlikely to succeed, because using race is not “reasonably necessary” to protect minority voters.

It seems clear that the Gingles preconditions are not met with CD1, specifically the third condition. The third condition states that a White voting bloc be sufficient to “usually defeat the minority’s candidate of choice.” But that plainly isn’t the case here. In 2008 and 2010, the incumbent in CD1—G.K. Butterfield[10]—won reelection with 70 and then 59 percent of the vote. This, despite African-Americans not being a majority in the district at that time. There was not a unified racial bloc against the “minority’s preferred candidate.” North Carolina could not justify using race to comply with VRA section two—it was not “reasonably necessary” to change the district.[11]

But what about their section five defense? Dealing with section five in Alabama v. Alabama Black Legislative Caucus, the Court articulated a standard saying legislators must have a “strong basis in evidence” to use race when they have “good reasons” to believe doing so was necessary to avoid retrogression, even if a court finds using race was not in fact necessary.[12]  That standard was applied in the Bethune Hill case, where the Court affirmed a lower court ruling that Virginia District 75 was constitutional despite a 55 percent BVAP target. It decided this based on what it deemed a good-faith “functional analysis” of the district in question.[13]

So, what about North Carolina?  There is little reason to think there was a “strong basis in evidence” or “good reasons” to create a majority-minority district to avoid retrogression. This is true for much the same reason in denying the section two defense—the African-American preferred candidate had a long track record of success without a BVAP over 50 percent.[14] There is no reason to think maintaining a non-majority-minority district would have diminished the minority group’s ability to elect their “preferred candidate” when it hadn’t in the past. This case is also different from Bethune Hill: a candidate in the questioned district there had actually requested a higher BVAP, and unlike Butterfield had run unopposed in the years prior to the redistricting.[15]

The State does cite a NAACP report contending that CD1 did suffer from racially polarized voting,[16] and one NAACP document predicted CD1 would “likely lack in African American population.[17]” These would have constituted the strongest argument in favor of overturning the lower court and rendering the district constitutional.

But the Court correctly reviewed the lower court’s decision on a “clear error” standard, meaning that it would not overturn the lower decision unless it was “clearly erroneous.[18]It does not seem likely the lower court made such an error by relying on consistent historical voting patterns.

In conclusion, the Court was correct to find North Carolina could not survive a strict scrutiny analysis with regards to CD1.

Congressional District 12

All of the CD1 analysis flowed from the initial understanding that race had been the “predominant factor” in redistricting. That point is not conceded with regards to CD12—the State in fact argues that political gerrymandering was the “predominant factor” here, and racial gerrymandering a byproduct of the correlation between race and party.

The leading authority on how to decide which interest dominates is Easley v. Cromartie, a Supreme Court case also involving North Carolina.  The district court had concluded race was the “predominant interest” in redistricting the contested district by reference to the district’s “unusual shape” as well as an email between senators noting that they had “moved Greensboro’s Black community.” But the Court was not convinced this alone proved racial intent, especially when race and politics are so intertwined. Eventually, the case set out an important rule:

“In a case such as this one where majority-minority districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance.[19]”

North Carolina claimed that this “alternative map” requirement was a categorical rule, but the Court disagreed.[20] It wrote that this case differed from Cromartie because there was more direct evidence regarding racial gerrymandering in this case. For example, the lower court credited a public statement by Rucho about “creating new majority African American districts” to comply with the VRA. The Supreme Court, citing this statement and others, affirmed the lower court and held the district unconstitutional.

It decided Cromartie had not established a categorical rule, but rather one suited to the unique circumstance where evidence of racial intent was lacking. It also pointed out that racial gerrymandering claims often involve context-specific and multi-factor analyses, such that making one piece of evidence (an alternative map) dispositive would not make sense.

The Court is likely right that this “alternative map” requirement is not categorical, but it is still mandatory “in a case such as this one.” And this case is not sufficiently different from Cromartie to ignore the “alternative map” requirement. Accordingly, the dissent’s view, which would have upheld the district because plaintiffs failed to produce an alternative map, was correct.

For the pieces of evidence showing racial intent, there is another showing partisan intent. For example, Dr. Hofeller testified that his instructions “were to treat District 12 as a political district” and that his use of Guilford County was just a precaution.[21]” Race was clearly a concern. But the conflicting evidence means these statements do not establish it was the “predominant concern,” which is what matters.  

Accordingly, the “alternative ways” requirement should still have applied, so long as the differentiation between political and racial motivations was not clear cut. This case is sufficiently a “case such as [Cromartie]” in that regard.[22] The Court’s gerrymandering jurisprudence is already convoluted and difficult for lower courts to interpret: attempting to distinguish away Cromartie here only makes it more so. The Court should have abided by its precedent and placed the alternative map burden on the plaintiff.  

Of course, the dissent’s conclusion leads to even more difficult questions. Can partisan gerrymandering really be a legitimate defense to racial gerrymandering? There are good reasons to think partisan gerrymandering is not a legitimate defense, not the least because serving individual senators is different from serving the interests of the more amorphous State. Supreme Court precedent from Davis v. Bandemer has held that partisan gerrymanders can be unconstitutional, although it has not yet struck down a map on that basis. It came close in the 2004

Vieth case[23] to overruling that decision and rendering such gerrymanders nonjusticiable, although it failed to do so.

But whether or not North Carolina’s partisan gerrymander is unconstitutional has no bearing on the resolution of Cooper v. Harris. Even if the map would have been unconstitutional as a partisan gerrymander, this case was about racial gerrymanders. So long as the plaintiffs failed to meet their alternative maps burden, the Court should not have struck down the district. The partisan gerrymandering case could then have been addressed in later litigation with full briefing on that particular issue.

Partisan Gerrymanders

Unfortunately, the legal status of partisan gerrymandering is perhaps more convoluted than racial gerrymandering law. Next term’s Gill v. Whitford case has the potential to clean up the confusion, although if past cases are any indication that is no guarantee. So far, the Supreme Court has said, in Davis v. Bandemer, that partisan gerrymanders can be unconstitutional in egregious circumstances. But the Court in several cases since has failed to agree on a standard to make this determination. In Vieth, the Court almost decided to render these cases nonjusticiable, but Justice Kennedy held out hope that a standard could arise in the future. 

Stemming from Wisconsin, the Gill case addresses an alleged unconstitutional partisan gerrymander by the Wisconsin General Assembly. The lower court adopted a tripartite test to decide whether or not a partisan gerrymander was unconstitutional:

1. The redistricting scheme must have “intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of political affiliation”
2. The scheme must have that effect
3. The scheme cannot be justified on other, legitimate grounds

In theory, establishing intent might not be too difficult. In the Wisconsin case, legislators had drawn different maps and assigned to each map partisan scores assessing how favorable they were to Republicans. North Carolina senators, as mentioned before, were blunt about their intentions in public.

Problems arise, however, when deciding how to evaluate the effects of an “impediment on the effectiveness of the votes of individual citizens.” What level of impediment is too much? The answer to that in the lower court’s opinion, it seems, turned on the competing regression analyses of expert witnesses and sensitivity testing that predicts election results in the future. The court found that these predictive analyses (showing entrenchment), combined with evidence from two elections under the challenged district map, were sufficient to find a severe impediment.  

For further measure, it also looked at the efficiency gap. The efficiency gap measures the difference in relative difference in wasted vote totals between the parties, where wasted votes are the number of votes cast “for the losing candidates in district races” along with “the number of votes case for the winning candidates in excess of the 50% plus one votes necessary to secure the candidate’s victory.” Mathematically the equation is as follows, where “W” is the wasted votes for a party and “n” is the total number of votes:

• EG = (W_B – W_a)/n

Although much media attention has focused on the EG, the lower court only considers it after discussing other evidence showing an impediment on voting strength. This is an important distinction. Critics of the lower court decision claim the EG implies a constitutional requirement that there be proportional representation (a party winning x percent of the vote entitles them to y percent of congressional seats). But the Supreme Court has stated on several occasions that this right does not exist. If the EG were the crux of the lower court’s argument, then the decision could not stand. But, the EG is only used as supporting evidence for a discriminatory effect, so its use does not doom the partisan gerrymandering claim.

But even if the EG is not the most important measure, there still has to be some sort of empirical measure to establish an effect on voters. Testimony about regressions and mathematical adjustments dominates the lower court’s opinion; unfortunately, most judges are not social scientists or mathematicians. The test proposed by the lower court seems bound to force judges to grapple with simulations and regressions that will likely reach opposing conclusions. The judiciary should be wary of creating a cause of action that will so largely depend on judges evaluating the accuracy of different mathematical measures, especially when the controversy involves the political process.

There are other arguments, however, that could support a partisan gerrymandering claim. Articles by Michael Parsons and Justin Levitt point out that perhaps an effects-based test is the wrong approach.[24][25] Both propose an “intent” based test that more closely mirrors how the Court already decides racial gerrymandering cases. If partisanship is the “predominant intent” behind the redistricting plan, the argument goes, the map is unconstitutional just as it would be if race were the “predominant intent.” This is because the harm here is that the government is using a discriminatory classification, which is easier for judges to assess.

If the Court were to strike down a partisan gerrymandering map, this should be the standard they use. It avoids inviting a wave of litigation that will hinge on how different courts evaluate different and often complex mathematical tests. If the Court were to find predominant intent, then the State would have to justify its action. Political preference in modern jurisprudence is not typically considered to be a suspect class, so the State would only need to meet rational basis review. This standard is the most lenient level of scrutiny, calling for a law to be “rationally related to a legitimate government interest.”

Although that standard is easier to manage, the Court should still decline to adopt it. It carries with it problematic assumptions about the political process. It assumes that voters vote solely for party, and not for a candidate or on policy issues. In this way, political classifications during redistricting are different than political classifications that, say, tax people based on political activity[26] or punishing an employee for involvement in a political campaign.[27] It might very well be the case nowadays that most voters do follow the party line, but this is not a judgement a court ought to enshrine into law.

Separation of powers principles also counsel not adopting this standard.  Legislators will always try to find some political advantage in redistricting, and allowing courts to hear these claims will lead to countless lawsuits by both parties. Asking courts to discern legislative motive with regards to race is one thing, but is quite another when it comes to political tactics. To preserve judicial independence—something increasingly under attack today—the Court would do best to stay out of the fray.

[1]David Harris v. Patrick McCrory (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 06, 2016).

[2] McCrory v. Harris (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 05, 2016).

[3] McCrory v. Harris (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 05, 2016).

[4] McCrory v. Harris (December 5, 2016). Oral Arguments.

[5] McCrory v. Harris (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 2016).

[6] Thornburg v. Gingles (UNITED STATES SUPREME COURT 1985).

[7] Miller v. Johnson (UNITED STATES SUPREME COURT 1995).

[8] Shaw v. Hunt (UNITED STATES SUPREME COURT 1996).

[9] Bartlett v. Strickland (UNITED STATES SUPREME COURT 2009).

[10] The court assumes, without providing evidence, that Butterfield is the “preferred candidate” of African Americans in this district. Although perhaps justifiable by his role as chair of the Congressional Black Caucus, making such an assumption is a pernicious aspect of this case, and of application of the Gingles factors in general. However, this conclusion is not contested by the parties, so it is unlikely the Court would use this as grounds to overrule the lower court.

[11] Bartlett v. Strickland in fact notes that such “crossover voters” make satisfying Gingles unlikely.

[12] Alabama v. Alabama Black Legislative Caucus (UNITED STATES SUPREME COURT 2015).

[13] Bethune Hill v. Virginia State Board of Elections (UNITED STATES SUPREME COURT 2017).

[14] Although the Georgia v. Ashcroft (2005) case emphasizes that section two and section five claims are different, it also notes that the analysis of the two sections could still intersect.

[15] Bethune Hill v. Virginia State Board of Elections (UNITED STATES SUPREME COURT 2017).

[16] McCrory v. Harris. (May 24, 2016). Appellants’ Brief in Opposition to Appellee’s Motion to Affirm.

[17] McCrory v. Harris. (January 17, 2014). NC NAACP Plaintiffs’ Responses to First Request for Production of Document (excerpted) (filed in Dickson v. Rucho)

[18] Bethune Hill v. Virginia State Board of Elections (UNITED STATES SUPREME COURT 2017)

[19] Easley v. Cromartie (UNITED STATES SUPREME COURT 2001)

[20] McCrory v. Harris (December 5, 2016). Oral Arguments

[21] McCrory v. Harris (UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 05, 2016).

[22] Easley v. Cromartie (UNITED STATES SUPREME COURT 2001)

[23] Vieth v. Jubelirer (UNITED STATES SUPREME COURT 2004)

[24] Michael Parsons, Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional, 24 Wm. & Mary Bill Rts. J. 1107 (2016)

[25] Levitt, Justin. Intent Is Enough: Invidious Partisanship In Redistricting, 59 Wm. & Mary L. Rev. (2017)

[26] Levitt, Justin. “Symposium: Intent Is Enough,” SCOTUSBlog. August 2017.

[27] Heffernan v. City of Paterson, New Jersey (United States Supreme Court 2016).