SCOTUS Says Districts Must Have Enough Minorities — but Not Too Many

In striking down two North Carolina districts as “racial gerrymandering,” the Supreme Court on Monday essentially ruled that districts need to have enough minority voters to elect candidates of their choice — but not too many.

The justices ruled 5-3 that Republican legislators in 2011 impermissibly made race the 
”predominant” factor in drawing Districts 1 and 12, currently represented by Democrats George Butterfield and Alma Adams, respectively. Justice Elena Kagan, in her majority opinion, did not offer a hard rule for how the districts should be construed.

“Too much race isn’t good. Too little race isn’t good. It has to be just the right amount of race. It is so vague it’s hard for legislators to know what to do.”

“It’s the Goldilocks principle,” said Hans von Spakovsy, an elections expert at the conservative Heritage Foundation. “Too much race isn’t good. Too little race isn’t good. It has to be just the right amount of race. It is so vague, it’s hard for legislators to know what to do.”

The immediate impact figures to be limited. The Republican-controlled legislature already had redrawn the districts at the order of a lower court. So the map used in the 2016 election remains in effect.

Kagan acknowledged that the Constitution gives states the responsibility for drawing political boundaries.

“But it also imposes an important constraint: A state may not use race as the predominant factor in drawing district lines unless it has a compelling reason,” she wrote.

In an opinion dissenting on the opinion regarding District 12, Justice Samuel Alito — joined by Chief Justice John Roberts and Justice Anthony Kennedy — accused the majority of ignoring its own precedent in a 2001 case challenging an earlier iteration of the district.

“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,” Alito wrote. “But that is what the Court does today in its decision regarding North Carolina’s 12th Congressional District: The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district.”

In that case, the high court rejected a challenge based on racial gerrymandering, holding that a plaintiff in such a case must show that the legislature could have achieved its “legitimate political objective.”

The plaintiffs in the current case, Alito noted, made no such showing and present no alternative map. He argued that this should have doomed the claim under the rule set forth by the court in the 2001 case.

Justice Clarence Thomas, who joined the majority opinion, wrote separately to express his view that the court originally erred in its 2001 redistricting decision and that the Monday opinion “represents a welcome course correction.”

Democrats Praise Ruling
Democrats hailed the decision, which they hope will force legislatures to shift black voters out of majority-black districts to neighboring districts. That would make Democrats more competitive in Republican-held districts — especially in the South and other states with large minority populations.

“This is a watershed moment in the fight to end racial gerrymandering,” former Attorney General Eric Holder said in a statement. “North Carolina’s maps were among the worst racial gerrymanders in the nation. Today’s ruling sends a stark message to legislatures and governors around the country: Racial gerrymandering is illegal and will be struck down in a court of law.”

Holder now serves as chairman of the National Democratic Redistricting Committee, which aims to help the party reverse its massive losses in Congress and state legislatures over the past decade by changing the process for redrawing political boundaries.

Rep. Marc Veasey (D-Texas) praised the ruling.

“I am happy that North Carolina voters secured another victory against the national Republican crusade to undermine the voting power of African-Americans and Hispanics in local, state, and federal elections,” he said in a statement.

But von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative, said the ruling will only make it harder to draw political boundaries after the next census. He noted that changes North Carolina legislators made to the North Carolina districts were small. District 1, in the northeastern part of the state, was underpopulated by about 100,000 people when lawmakers redistricted. After adding residents from other districts, the black voting-age population increased from 48.6 percent to 52.7 percent.

Von Spakovsky said that is an absurdly small difference to separate a constitutional map from an unconstitutional one. It will leave mapmakers guessing as the appropriate percentages, he said.

“This won’t give them any more information on how to do this,” he said. “This case really doesn’t clarify that.”

More Cases En Route to Court
Thomas Ross, a former judge who is a distinguished fellow at Duke University’s Sanford School of Public Policy, said there are several other redistricting cases making their way to the Supreme Court — including challenges based on partisan gerrymandering.

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“We’ll have more clarity before the 2020 redistricting; at least I hope there will,” he said.

Ross said Monday’s ruling gives more weight to the push to hand over redistricting to non-partisan commissions, which a handful of states use. He noted that Monday’s ruling comes six years after North Carolina lawmakers adopted it. The court-ordered map in place during last year’s election faces a separate challenge based on partisan gerrymandering.

“The new map already has been challenged,” he said. “We could be in litigation for the entire 10-year period. That’s crazy.”

North Carolina lawyers argued in court that lawmakers were motivated by partisan advantage, not race. Republicans were trying to pack Democrats into a small number of districts so they could win the rest. But in much of the South, there is a strong correlation between race and party, which means that packing Democrats into a district largely is the same as packing blacks.

Kagan’s majority opinion deferred to the judgment of the lower court about whether the redistricting was about race or politics. J. Michael Bitzer, a political science professor at Catawba College in North Carolina, said it remains to be seen whether there is a race-neutral procedure that would pass muster with the courts and allow Republicans to achieve their partisan aims.

“That’s the great unknown,” he said.