[EL] Analysis of the Supreme Court's North Carolina Racial Redistricting Decision
Justin Levitt
levittj at lls.edu
Mon May 22 11:54:52 PDT 2017
If you're looking for a reaction to the NC redistricting case from
someone not named Rick, I'll offer my version, now up on the Election
Law Blog <http://electionlawblog.org/?p=92700>.
Though I agree with a lot of both Ricks' assessment, I pretty strongly
disagree with Rick Hasen that the Court just conflated race and party.
Indeed, I think that's the same sort of overly blunt,
back-of-the-envelope assessment that got the legislators in North
Carolina (and several other states now
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426>) in trouble.
Instead, I think the Court "just" reiterated the notion that whether
tribally partisan
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239491>
motivations are themselves permissible (more to come in both the
Wisconsin case and in Part 6 of the North Carolina CD12 saga), it's
unlawful to intentionally use race as the predominant and unjustified
means to that end. I put "just" in scare quotes because it's a concept
that in the dilution context is quite old, but legislators seem to need
fairly constant reminders. And the fact that the Court issued yet
another forceful reminder isn't a small thing.
(Much) more on the blog, here <http://electionlawblog.org/?p=92700>.
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 5/22/2017 9:32 AM, Pildes, Rick wrote:
>
> I have been asked to contribute to a SCOTUS blog Symposium on today’s
> North Carolina decision. Here is the piece I have submitted, which I
> wanted to circulate to the list while it is in the editing process at
> the SCOTUS blog, for those who are trying to digest the decision now:
>
> **
>
> *The Court Continues Winding Down Unnecessary Racial Redistricting *
>
> The main take-away from today’s decision is that the Supreme Court is
> continuing the project of winding down unnecessary racial
> redistricting. The decision reflects the Court’s effort to modernize
> the Voting Rights Act (VRA) and ensure it adapts to the way the
> dynamics of race and politics have changed, in some parts of the
> country, in the many decades since the Act first was passed. The
> crucial fact in today’s decision is that 30-40% of white voters in
> parts of North Carolina are willing to cross-over and vote for the
> same candidates that African American voters prefer – and that the VRA
> must reflect and recognize these changing realities.
>
> The Court today shored up the constitutional constraints limiting the
> use of race in redistricting, which has been the main development in
> the law of redistricting this decade. That development began with the
> /Alabama /cases, /Alabama Legislative Black Caucus v. Alabama, /and
> has now been extended to Virginia and North Carolina. And the Court
> also opened up a new avenue of constraint by holding that if white
> voters now vote for candidates black voters prefer at high enough
> rates, the intentional creation of majority-black districts is no
> longer required – and indeed, is unconstitutional.
>
> Let me situate today’s decision, before turning to its specifics, in
> the broader context of the Voting Rights Act and how race came to play
> the role it currently does in the modern era of redistricting.
>
> The regime of Voting Rights Act-required racial redistricting began in
> the 1990s, in the wake of Congress’ 1982 Amendments to the VRA and the
> Supreme Court’s 1986 decision in /Thornburg v. Gingles. /But almost
> immediately after the start of that regime, beginning with the /Shaw
> v. Reno /line of cases, the Court has been struggling to cabin in and
> constrain VRA-required race-based districting to circumstances in
> which it is truly necessary. In an opinion by Justice Souter back in
> 1994, /Johnson v. DeGrandy, /the Court wrote that race-based
> districting under the VRA relies “on a quintessentially race-conscious
> calculus aptly described as the ‘politics of the second best.’” A
> majority of the Court – confirmed by the parts of today’s opinion that
> are unanimous – has acted on that view ever since. If the VRA truly
> requires race- based districting in certain circumstances, that is
> fine. But the Court has been extremely wary of extending the regime of
> race-based districting anywhere beyond those circumstances.
>
> Over the last 30 years, the Court has held that the VRA does not
> require maximizing the number of minority districts, but only ensuring
> that minority voters have an equal opportunity to elect their
> candidates of choice; it has held that the VRA does not require (and
> the Constitution prohibits) using irregular district shapes to create
> “minority opportunity” districts; it has held that the VRA does not
> apply if minorities cannot be made into the majority in a district.
> And with ever more force – as in today’s decision – the Court has held
> that the Constitution is violated if jurisdictions use the VRA to
> engage in race-based districting unless it is clear that the VRA
> clearly requires doing so. I viewed developments as moving in this
> direction back in a 2007 article, /The Decline of Legally Mandated
> Representation,
> <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028607>/ and
> since then, the Court’s efforts to constrain unnecessary race-based
> districting have become only more forceful.
>
> The most important aspect of today’s decision is the Court’s
> /unanimous /conclusion that Congressional District 1 (CD 1) is an
> unconstitutional racial gerrymander. It would be easy to miss that
> this part of the opinion is unanimous, because the Court divided 5-3
> on a second district at stake, CD 12. But I have always said
> <https://electionlawblog.org/?p=92393> the most important issue in the
> NC case was that involving CD 1, and there, the Court was indeed
> unanimous. And here, what is critical is that the Court rejected
> North Carolina’s argument that the VRA required it to create a
> majority-black district to make sure black voters had equal political
> opportunity. More specifically, the Court concluded that voting in
> this area was not racially polarized enough to require the remedy of a
> majority-black district.
>
> What does it mean for voting to be racially polarized (RPV)? This has
> been a key concept under the VRA, and yet the Court has given the
> concept almost no significant attention – with today’s decision being
> the Court’s first and thus most significant opening up of questions
> about this concept.
>
> When RPV first entered this area of the law, the idea was simple: if
> 90% of blacks vote for one candidate and 90% of whites vote for the
> opposing candidate (especially when the former candidate is black),
> there is a clear pattern of RPV. But what happens when – as in North
> Carolina today – roughly 30-40% of whites are willing to vote for
> minority candidates? Since the VRA is only triggered in the
> redistricting area when voting is racially polarized, should RPV still
> be considered to exist in NC when there is this level of white
> cross-over voting support? If the VRA still applies, how does it
> apply when we no longer have in NC the extreme and stark racial
> polarization of earlier decades?
>
> Here is how the Court resolves these issues as they come to bear in CD
> 1: for the last twenty or so years, there was enough white cross-over
> voting support that even though the district had a black population of
> only 46-48%, it overwhelmingly and repeated elected a black member of
> Congress – typically, with 70% of the vote. Yet North Carolina took
> the view that the VRA required pump up the black population above 50%
> to be sure the district was “safe” in ensuring for black voters an
> equal opportunity. But the Court held that voting cannot be
> considered racially polarized if there is enough white cross-over
> support that black candidates are being elected from districts that
> are less than 50% black.
>
> This conclusion is of great significance in further unwinding
> unnecessary racial redistricting. It means that the mechancial
> creation of majority-minority districts will no longer be
> constitutionally tolerated. If a cohesive black community can get its
> preferred candidates elected in districts that are, perhaps, only
> 35-40% black, then pumping those districts up to more than 50% black –
> on the view that the VRA requires it – will be unconstitutional. This
> opens up much more space for the creation of what I have called
> coalitional or cross-over districts
> <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=304587>, in which
> black and white political coalitions unite behind the same candidates.
> Indeed, as the Court today recognized, it would turn the VRA on its
> head if the law actually required – as North Carolina insisted it did
> – that these kind of effective coalitional districts had to be turned
> into majority-black districts, just to ensure they are sufficiently
> “safe.”
>
> Put in other terms, the decision confirms that States must adhere to
> the view that the intentional creation of majority-minority districts
> is a “second best” remedial device, to be used only where clearly
> required. Indeed, important parts of the opinion further emphasize
> that, when engaged in race-based districting, States must do a
> thorough job of demonstrating that doing so is necessary – “the State
> must carefully evaluate” whether the facts support this, and the State
> must engage in a “meaningful legislative inquiry” about whether doing
> so is necessary.
>
> There are other aspects of today’s decision that will also be
> important in enforcing constitutional constraints on the excessive and
> unjustified use of race in redistricting. The Court said, once again,
> that the setting of “a racial target” that has a direct impact on the
> design of a district means that strict scrutiny is triggered and the
> district can survive only if the VRA requires it.
>
> Once again, the Court confirmed that if the State intentionally sorts
> voters by race into districts, the State cannot hide behind the
> argument that its ultimate goal was to pursue an effective partisan
> gerrymander. To the extent partisan gerrymandering is constitutional,
> States can sort voters by their voting patterns, but not by their
> race. As the Court has said before, race cannot be used as a “proxy”
> for political voting preferences. To be sure, this can create a mess
> for the lower courts if a State does not directly and obviously use
> race to sort voters; the courts then have to sort out whether it was
> “really” race or partisan factors that drove the district’s design (I
> have long argued that it makes little sense for the Court to impose
> constitutional constraints on racial gerrymandering, but not partisan
> gerrymandering).
>
> There is still more in today’s decision: The Court held that
> plaintiffs in these /Alabama /cases do not have provide their own
> alternative map (which can be a costly and time consuming venture) in
> order to be able to prove that a jurisdiction has engaged in
> race-based districting. And there had been a confusing couple of
> sentences in an earlier case, also from North Carolina, that had
> befuddled the lower courts; the Court today confines those sentences
> to the particular facts of that one case, as Justice Thomas, who
> joined the majority, pointed out. That is all to the good as well.
>
> In every respect of today’s decision today, then, the Court built on
> the /Alabama /line of cases further and made it all the more clear
> that the Court will aggressively police the role of race in
> redistricting, not permit the VRA to become a vehicle for excessively
> packing black voters into districts, and will continue the project of
> unwinding unnecessary race-based districting.
>
> Disclosure: I argued one of the /Alabama /cases and continue to
> represent plaintiffs in that case, which remains pending in the lower
> courts.
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square South, NY, NY 10012
>
> 212 998-6377
>
> **
>
>
>
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