[EL] NC redistricting

[Justin Levitt]

FWIW, as Rick P. mentions in his "issue 1B," one of North Carolina's 
defenses is that it drew congressional district 1 at 50% in order to 
comply with the VRA, even though actual data on the ground showed no 
need to increase the district's African-American voting population in 
order to give the minority community an equal opportunity to elect 
candidates of choice.  In a piece confronting several states' approach 
to VRA "compliance" this cycle, I argued that this particular defense 
amounts to a misreading of the Court's precedent, indulging racial 
essentialism that the statute is designed to avoid.  It's at p. 589-91 
and 597-98 here 
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426>.

Justin

-- 
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
ssrn.com/author=698321
@_justinlevitt_

On 5/6/2017 6:06 AM, Rick Hasen wrote:
> *What To Look for When the Supreme Court Decides the North Carolina 
> Redistricting Case <http://electionlawblog.org/?p=92393>*
>
> Posted on May 5, 2017 11:57 am 
> <http://electionlawblog.org/?p=92393> by *Richard Pildes* 
> <http://electionlawblog.org/?author=7>
>
> The Court has already decided one major racial redistricting case this 
> Term, /Bethune-Hill, /from Virginia.  The other major racial 
> redistricting case, /Cooper v. Harris/, from North Carolina, is now 
> one of three cases outstanding the longest since argument. /Cooper 
> /involves two congressional districts, CD 1 and CD 12 (by now, CD 12 
> must have been litigated before the Supreme Court more times than any 
> congressional district in history).  I want to untangle the various 
> issues at stake and provide perspective on which legal issues are the 
> key ones to focus on when this opinion finally comes down.
>
> To begin, the issues concerning CD 1 and CD 12 are quite different – 
> and the ones involving CD 1 have the broadest legal significance (that 
> makes it a bit unfortunate that most of the oral argument focused on 
> CD 12).
>
> For CD 1, the issues center on the legitimate role of race in the 
> districting process, in a state where significant levels of white 
> cross-over voting exist for candidates black voters also prefer.  In 
> CD 1, the North Carolina legislature increased the black voting-age 
> population (BVAP) from 47.76% to 52.65%, even though at that lower 
> population level the district had regularly performed as a successful 
> Voting Rights Act (VRA) district – it had consistently elected the 
> candidate of choice of black voters.  But the State argues that to 
> safely comply with the VRA, it sought to create a /majority/-black 
> district.  The plaintiffs argue that the VRA doesn’t require turning 
> districts that are already working as VRA districts into 
> majority-minority districts, and that NC therefore acted 
> unconstitutionally by using race to an excessive and unjustified extent.
>
> At stake here is whether the VRA requires creating majority-minority 
> districts, even when districts with interracial coalitions are 
> effectively electing candidates of choice of minority voters without 
> minority voters needing to constitute a majority.
>
>  1. For CD 1 the critical legal issues lie at the intersection of the
>     VRA and the Constitution regarding the permissible role of race in
>     the design of districts:
>      1. The first significant issue is whether “race predominated” in
>         drawing CD 1 and – just as importantly – if so why.  More
>         colloquially, the question is whether CD 1 is a racial
>         gerrymander (racial gerrymanders can be constitutional, but
>         the districts must survive strict scrutiny).  The lower court
>         called CD a “textbook example of” a racial gerrymander.  But
>         it provided two different kinds of reasons for that
>         conclusion; the way the Court responds to these two different
>         approaches is critical.
>
> (1) Much of the lower court opinion concludes race predominated 
> because the state set a specific racial target or floor on the BVAP 
> the district had to have, which the redistricters said they did 
> because that’s what the VRA requires.  The lower court quoted the 
> redistricters for making clear that the VRA required that CD have a 
> BVAP “of at least 50 percent plus one person.”  In passages like the 
> following, the court suggested that it was the application of this 
> racial floor, in itself, that required the conclusion that race had 
> predominated: “Because traditional districting criteria were 
> considered, if at all, solely insofar as they did not interfere with 
> this 50-percent-plus-one person minimum floor, the quota operated as a 
> filter through which all line-drawing decisions had to pass.”
>
> Passages like this suggest it is /sufficient /for a court to conclude 
> that a racial gerrymander has occurred if the redistricters apply a 
> specific racial floor that a district must be above.
>
> (2) But despite having said that, the court went on to provide a 
> second type of reason to support concluding that race predominated in 
> CD 1.   The court found that the redistricters also split counties and 
> precincts when needed to meet this 50% BVAP target.  In legal terms, 
> this means they subordinated traditional districting principles to the 
> goal of meeting this target.
>
> The significant issue is whether in deciding whether race predominates 
> the first type of reason is indeed sufficient or whether redistricters 
> must, in addition, subordinate traditional districting principles by 
> doing things like splitting counties and precincts.  The Supreme Court 
> already engaged these issues to an extent in /Bethune-Hill/, as I’ve 
> discussed <http://electionlawblog.org/?p=91415>, where the Court 
> announced “[r]ace may predominate even when a reapportionment plan 
> respects traditional principles.” But everything the Court says about 
> these questions is important and any additional clarification the 
> Court offers regarding when race predominates in the legal sense will 
> be meaningful.
>
> B.  If CD 1 is a racial gerrymander and strict scrutiny applies, does 
> the Court accept NC’s defense that increasing the BVAP to over the 50% 
> level is an appropriate way to comply with the VRA here?  In rejecting 
> that defense, the lower court expressed its view in strong terms:
>
> /The suggestion that the VRA would somehow**require racial 
> balkanization where, as here, citizens have not voted as racial blocs, 
> where crossover voting has naturally occurred, and where a 
> majority-minority district is created in blatant disregard for 
> fundamental redistricting principles is absurd and stands the VRA on 
> its head./
>
> How will the Court address NC’s defense?
>
>  2. For CD 12, the issues are more narrowly fact-bound ones about
>     whether politics or race was the predominant reason for the
>     district’s design.  As with CD 1, the BVAP was much higher after
>     the redistricting than before and was similarly increased to over
>     the 50% line:  it went from 43.7% to 50.66%.  But for this
>     district, the state’s defense is very different.  The state does
>     not assert that it did this because of the VRA and the state
>     denies setting any racial target for the district.  Pure partisan
>     politics, the State argues, caused the district to be designed as
>     it was; this increase in the BVAP was simply the fallout from a
>     partisan gerrymander.
>
> If the Court concludes that CD 12 was a racial gerrymander, there is 
> no doubt the district will be found unconstitutional.  The state has 
> offered no defense to the claim of racial gerrymandering for CD 12 
> (unlike CD 1) because the defense here is that no racial gerrymander 
> took place, period.
>
> The issue of untangling racial from political purposes is a recurring 
> one in these cases, and the way the Court untangles those threads here 
> will provide some guidance to lower courts. But because the disputes 
> are largely factual ones, the legal issues at stake are not generally 
> as broadly significant as those concerning CD 1.
>
> There is, though, one element the Court is likely to address that will 
> affect many cases.  The Court spent much time at oral argument over a 
> passage (really, a sentence) authored by Justice Breyer in an earlier 
> North Carolina redistricting opinion, /Easley v. Cromartie, /that has 
> caused a good deal of uncertainty and confusion in the lower courts. 
> Given how much attention the Court spent at argument on this passage, 
> the Court is likely to try to clarify the meaning of this language 
> from this earlier NC case.
>
>  3. There is also a complex procedural dimension to this case, which
>     undoubtedly contributes to why the case has been pending so long. 
>     As is not uncommon in redistricting cases, we have two parallel
>     sets of litigation here:  both the North Carolina Supreme Court
>     and the federal courts have addressed the same factual and legal
>     issues.  And the state and federal courts came to different
>     conclusions, factually and legally, about both CD 1 and CD 12.
>
> The case before the Supreme Court arises out of the federal 
> litigation.  But the Court has to confront the issue of how to handle 
> situations where we have competing state and federal court findings of 
> fact involving the same federal legal claims.  Normally, the Court 
> would apply the clear-error standard of review to the findings of the 
> trial court whose decision the Court is reviewing – here, the federal 
> court.  But should the clear-error standard be applied differently 
> when there is an additional set of findings of fact (here, contrary 
> ones) in a separate state court proceeding?  These are interesting 
> procedural issues in federal-courts law, but they do not directly 
> involve the substantive questions about the legitimate role of race in 
> the districting process and the relationship between the VRA and the 
> Equal Protection clause of the Constitution.
>
> Short summary: even though the oral argument almost entirely neglected 
> CD 1, that’s where I’ll be focused first when this case comes down.
> Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme 
> Court <http://electionlawblog.org/?cat=29>, Voting Rights Act 
> <http://electionlawblog.org/?cat=15>
>
>

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