[EL] Analysis of the Supreme Court's North Carolina Racial Redistricting Decision

[Guy-Uriel E. Charles]

And to push the point one step further (elucidate a somewhat cryptic point I made in my last post): one possible, if not likely, implication of Cooper v. Harris is that it encourages Democrats to challenge the 50-60% districts to create more 30-50% districts.  These new districts are likely to reverse the earlier trade-offs. Whereas before we traded White Democrats for Black ones.  We will now Black Democrats for White ones.  This is why I think this opinion works for the Democratic Party but less so for those in minority communities for whom descriptive racial representation is an important end. Guy
On May 22, 2017, at 6:18 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu>> wrote:

For those who are not steeped in these issues, I want to point out the broad significance of the graph Nick Stephanopoulos included in his message/post.  That graph shows that the way the VRA affected districts throughout the South was to push minority voters (mainly, black voters) into two predominant types of districts:  those with a 60% minority voting-age population and those with a 20% voting-age minority population.  What this did was to dramatically reduce throughout the South the number of districts in which minority voters constituted 30-50% of the voting-age population.

These 30-50% minority districts were the ones that tended to elect white Democrats in the South.  As a result, the ranks of white Democrats in the South were significantly reduced, starting in the 1990s when this system went into effect.  The 20% minority population districts tended to elect Republicans.  The 60% minority districts tended to elect black Democrats.

Nick’s graph, aggregated across all districts in the South, sharply illustrates this VRA-induced sorting.

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square South, NY, NY 10012
212 998-6377

From: Nicholas Stephanopoulos [mailto:nicholas.stephanopoulos at gmail.com]
Sent: Monday, May 22, 2017 4:37 PM
To: Pildes, Rick
Cc: Justin Levitt; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] Analysis of the Supreme Court's North Carolina Racial Redistricting Decision

A few more points to add to the analyses by Rick H., Rick P., and Justin:

1. Ever since Gingles itself, it has been an open question whether the mere fact of racial polarization in voting suffices to satisfy the case’s second and third prongs. (Justice Brennan’s opinion said yes, but it commanded only four votes on this issue. Some lower courts—including the Fifth Circuit—subsequently held that the prongs are not satisfied if partisanship explains racial polarization.)

Today the Court strongly suggests that the causes of racial polarization are irrelevant. In the Court’s long discussion of crossover voting in District 1, it does not mention a single potential explanation for voter behavior: not partisanship, not racial animus (or its absence), not socioeconomic characteristics, not anything. Instead, the Court relies exclusively on the raw election returns, which indicate that substantial crossover voting must be occurring since black-preferred candidates consistently won elections with ~65% of the vote even though blacks made up only ~48% of District 1’s population.

Going forward, I expect that Section 2 plaintiffs will be able to use the Court’s discussion as a powerful rejoinder to any argument that racial polarization should not “count” for Gingles purposes if it is the product of some non-racial factor. This should make it significantly easier for plaintiffs to satisfy the Gingles preconditions, especially in areas (like the Fifth Circuit) where courts had previously probed quite rigorously the reasons for racial polarization.

2. Another question left open by the Court’s case law is whether crossover districts can comply with Section 2 when all three Gingles preconditions are satisfied. This precise fact pattern was not before the Court since there was insufficient white bloc voting in District 1 to meet the third Ginglesprecondition. However, the Court’s opinion hinted pretty clearly that crossover districts are acceptable Section 2 remedies, even under conditions of severe racial polarization. In the key passage, the Court quoted North Carolina’s position that if “§ 2 does not require crossover districts . . . then § 2 also cannot be satisfied by crossover districts.” This stance, declared the Court, “is at war with our § 2 jurisprudence.”

Several implications follow. First, jurisdictions that are successfully sued under Section 2 should be able to design crossover districts as a remedy for the violation. Second, Section 2 suits should fail if they are used to challenge existing crossover districts (in an effort to replace them with majority-minority districts). And third, as in Cooper, jurisdictions should not be able to use Section 2 compliance as a defense in a racial gerrymandering case if they convert crossover districts into majority-minority districts. Arguably, all of this was implicit in Bartlett, but it’s still important to see the Court providing confirmation.

3. Finally, there are many majority-minority districts, both in the South and elsewhere in the country, where functioning crossover districts could be drawn instead. In an article<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D2336749&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=XUqRs7wWVl1pGiq5UxuQKVXo_2n1Vq7y2w7ohu-0Gw4&e=> a few years back, I created the below density curve of minority population share in all districts (congressional and state legislative) in states previously covered by Section 5. The distribution is clearly bimodal, with one of its peaks around 60% minority voting age population. The district distribution also looks nothing like the underlying distribution of minority population share at the precinct level, which is unimodal and normal in shape. This suggests that the district distribution—with its many majority-minority districts—is the product of intentional racial redistricting.

Of course, the mere fact that a crossover district could have been drawn in an area where a majority-minority district was drawn instead does not establish that race was the predominant factor in the district’s creation. The plaintiffs in Cooper had much more damning evidence than that, including the use of an explicit racial target. Nevertheless, it is certainly relevant that many majority-minority districts are more “packed” than they need to be to comply with Section 2—likely intentionally in many cases. This means that Cooper’s reach could be greater than that of the racial gerrymandering cases the Court has previously decided this cycle.

 <image001.png>

On Mon, May 22, 2017 at 2:18 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu>> wrote:
Had I know Justin was posting a critique of Rick Hasen and the NC case, I would not have found a need myself to do a second post on the case to explain why I reject Rick Hasen’s analysis of the decision.  I agree with Justin’s critique on that, but I had already gone ahead and posted my similar critique, here<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fp-3D92706&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=G3bCzsCDmaDQoo7fMwunLQqVSfg4JYMttqh0ro1feGo&e=>, on the problems with Rick Hasen’s discussion.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square South, NY, NY 10012
212 998-6377<tel:(212)%20998-6377>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Justin Levitt
Sent: Monday, May 22, 2017 2:55 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] Analysis of the Supreme Court's North Carolina Racial Redistricting Decision


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<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fp-3D92700&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=QJ179JI9hLAWcyQy0PWfxlw3Hd7Af79Mwk7IjPzEvak&e=>.

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://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D2487426&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=cDGSP-L2eapHGZSseQBZuOuilnnplZ3tlA8ScHC6d1Q&e=>) in trouble.

Instead, I think the Court "just" reiterated the notion that whether tribally partisan<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D2239491&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=c0r4dGmWvkJTiIz2jd9dHI3zmL45L2GXcuI_M2aPjpU&e=> 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<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fp-3D92700&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=QJ179JI9hLAWcyQy0PWfxlw3Hd7Af79Mwk7IjPzEvak&e=>.

Justin

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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://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D1028607&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=SJZABAsY5QGC9ltXKYso53XXyCPw6nzp5coAdDpskEs&e=> 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://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D92393&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=dkn9LMeTLRAdgYfn2ctUoq2yF0GDCxAkNsbIyNWQfyE&e=> 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 calledcoalitional or cross-over districts<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D304587&d=DwMGaQ&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=RP3564lSCCXvtfDksh1RvVs4CRNKjuFmnkcxKhbGCQs&s=P4meA77T9M1BGKLhULanAHxt_CJdsrGpyRHPb621-P8&e=>, 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<tel:(212)%20998-6377>



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