Election law expert Rick Hasen concluded his reaction to the Supreme Court’s racial gerrymandering case with one word: “Wow.”
In a ruling delivered on Monday, the US Supreme Court concluded that North Carolina was racially motivated, without proper cause, when lawmakers redrew the state map for congressional districts.
The North Carolina case dealt with two districts in particular. Republican lawmakers in the state, after the 2010 census, had redrawn the map to add more black voters into Districts 1 and 12. Lower courts concluded that race was a predominant factor in the redrawing of these districts, without a compelling interest that would justify heavily taking race into account.
The Supreme Court, in a 5-3 decision written by Justice Elena Kagan, agreed, concluding that North Carolina violated the Equal Protections Clause of the 14th Amendment by separating voters in different districts on the basis of race without “sufficient justification” for doing so.
In delivering its ruling, the Supreme Court affirmed lower rulings that had already led the state to redraw its congressional maps to not factor in race as much as before. But with its sweeping judgment, the Supreme Court also sent a signal to other states — telling them they have to be much more careful in redrawing their congressional and legislative districts. And that could ultimately shake up how far Republicans and Democrats can go in trying to redraw legislative maps to gain a political advantage, effectively encouraging state lawmakers to be less aggressive when gerrymandering.
As Hasen put it, “This decision by Justice Kagan is a major victory for voting rights plaintiffs, who have succeeded in turning the racial gerrymandering cause of action into an effective tool to go after partisan gerrymanders in Southern states.”
States can and should consider race when redrawing districts — under some conditions
States are charged with regularly redrawing their legislative maps, usually in line with the decennial national census. This is meant to keep up with shifting populations and demographics. But the party in power has throughout US history leveraged this ability to draw maps that are politically advantageous — by, for example, diluting the voting power of a certain demographic that’s less likely to vote for the party in question. This is known as gerrymandering, the act of manipulating electoral boundaries for political gain.
To understand the Supreme Court’s decision, it’s important to first know that a state can consider race when drawing its legislative maps. But to use race as a predominant factor, the state has to have a compelling interest. For example, a state can say that it needs to, under the federal Voting Rights Act, consider race to ensure that a minority voting bloc isn’t consistently negated by a larger set of white voters who vote against the minority voting bloc’s preferred candidate.
The compelling interest requirement is meant to address a big problem: In the US, lawmakers have often used racial demographics to gerrymander a legislative district map for personal political advantage. Since racial demographics can predict whom a certain group of voters will elect, this can help certain politicians — particularly Republicans today — stay in power. This doesn’t advance a compelling government interest, but elected lawmakers have an incentive to do it anyway for their own personal gain.
So states can end up with congressional districts that look like North Carolina’s, where big and small chunks of land are pulled together into an awkward shape — resembling rivers and toy puzzle pieces more than voting blocs.
The Supreme Court’s North Carolina decision will help avoid this kind of scenario in the future.
In striking down the North Carolina map, the Court also affirmed a two-step analysis for legal challenges over whether a state violated the law by considering race in its legislative map. First, a plaintiff must show that race was a predominant factor in the map’s redrawing. If that condition is met, the state must then prove that it had a compelling interest to predominantly consider race — such as protecting minority voting power under the Voting Rights Act. This is essentially what the Supreme Court held in other cases, including decisions regarding Virginia and Alabama.
“The big takeaway for legislators is you got to do your homework,” said Loyola Law School professor Justin Levitt, who worked on an amicus brief in favor of the North Carolina plaintiffs while he was at the US Department of Justice. “You got to actually put in the time to figure out where there are real responsibilities under the Voting Rights Act — and there will be real responsibilities under the Voting Rights Act. Where there are, you have to consider race to draw appropriate districts. Where there aren’t, you can’t just throw people into a district based on their race willy-nilly.”
In short, Levitt said, “You have to operate using precision tools, not blunt ones.”
With its new ruling, the Court gave voting rights advocates another tool to limit gerrymandering
Knowing the legal precedent here, North Carolina based its defense of its congressional map around the two-step analysis.
In regards to District 1, the state acknowledged that it had taken race into account. But it said it was concerned that if it didn’t add more black voters to the district, then it could have potentially diluted black voting power — in violation of the Voting Rights Act. The Supreme Court concluded that there was not enough evidence for the state’s claim. So the justices swatted it down.
“That was one of the fights today: If I’m a North Carolina legislator and I just say the words ‘Voting Rights Act,’ does that mean I can do whatever I want?” Levitt said. “The Court said, ‘No.’”
Things get more complicated in regards to District 12. There, the state argued that citizens’ race was not the predominant factor; instead, it said it predominantly based borders on voters’ partisan ties. In doing this, the state was trying to avoid tougher legal standards applied to considerations over race in gerrymandered maps than are applied to considerations over partisanship.
The problem for gerrymandering lawmakers is that the predominant consideration of race triggers “strict scrutiny,” in which they have to prove they have a compelling interest — through, for example, the Voting Rights Act considerations noted above — to redraw the districts how they want. This can be a very tough standard to meet.
But if gerrymandering lawmakers argue that they are using race as a proxy for political party, perhaps that may not trigger strict scrutiny — since they may be legally allowed to consider partisanship when redrawing legislative maps without meeting strict scrutiny. Until now, this argument seemed to give an out for allegations of racial gerrymandering.
“Another fight: If I draw districts based on race and say this was really politics, is that okay?” Levitt said. “And the Court’s answer was, again, ‘No.’”
This can get tricky, because party and race are often so closely aligned that it becomes difficult to see whether a partisan consideration or a racial one is the predominant factor. Hasen wrote, linking to his essay on the topic, “This is a particularly difficult question in the American South, because of ‘conjoined polarization,’ race and party overlap to a great extent, so the question of which predominates is somewhat nonsensical.”
Justice Kagan by and large dodged this issue in writing most of the majority opinion. She argued that the lower court’s ruling on District 12 was plausible enough, given the presented evidence, and the Supreme Court only had to step in and overturn the lower ruling if there was a “clear error” in how prior judges interpreted the facts of the case.
But Kagan also attempted to wrestle with the “conjoined polarization” issue in two footnotes — which Hasen called “bombshells.” One footnote concludes, for example, 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.” So lawmakers may no longer be able to use race as a predominant factor even if they argue it’s used as a proxy for partisanship — and that will make it much harder to avoid strict scrutiny.
Hasen predicted this will make it much harder to gerrymander districts in the South: “This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts.”
In a follow-up to Hasen’s blog post, Levitt disagreed, arguing that the ruling is “pretty narrow” and won’t have as much reach as Hasen suggested.
Still, the ruling may force lawmakers to do a bit more homework — and make sure their legal arguments are really sound — before they approve a map. And that could make legislators less likely to redraw legislative maps in the aggressive way they have been for decades.
The latest ruling is not the final word on this issue. In fact, the North Carolina map that the state drew in response to lower court rulings in this same case has already inspired legal challenges. And there are standing legal challenges rooted in other states’ maps. So it’s likely the Supreme Court will be looking at some of these same issues in North Carolina and other states in the future — and the precedent established on Monday could be a big deal then.