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

Mon May 22 17:11:02 PDT 2017

What Christopher describes as the “Alaska approach” to avoiding Section 2
liability (first redistrict blind to race, and then analyze the resulting
districts for potential minority vote dilution), was the same approach the
Indiana Supreme Court took more than a decade ago in Peterson v. Borst, 789
N.E.2d 460 (Ind. 2003), a case involving municipal redistricting. There, the
Court, after adopting a remedial redistricting plan for the Indianapolis
City County Council, 786 N.E.2d 668 (Ind. 2003), was confronted with a
petition for rehearing filed by the Republican majority suggesting that the
Court’s remedial plan may violate Section 2 by diluting the votes of African
Americans. The Court rejected that argument, noting that in drawing its
remedial plan it had utilized only the statutory factors of compactness and
population equality without regard to political or racial considerations,
but that after drawing districts it then examined the minority populations
in each of the new districts. After doing so it observed that it had only
drawn 3 of 25 districts with a majority minority population (down 2 from the
prior plan) , 4 with an African-American population of 40% or more, and a
total of 11 districts where African-Americans made up 25% or more of the
population in those districts. The Court next noted that “a reduction in the
total number of majority-minority districts does not necessarily dilute
minority voting rights,” particularly absent evidence that white voters
voted sufficiently as a bloc to defeat African Americans’ preferred
candidate. The Court, finding no basis for presuming Section 2
noncompliance, unanimously denied the petition for rehearing. 

Indiana Republicans have long used the alleged need to comply with Section 2
to unnecessarily create majority, and in some instances supermajority,
minority districts in Marion County, which has both the largest percentage
and number of African-American voters in the State. They have done so even
though there has never been a legal finding of racially polarized voting,
and Cong. Andre Carson has consistently been re-elected by wide margins in
an overwhelmingly white district located wholly within Marion County. I
suspect that pretext may no longer be viable in light of today’s ruling.

William R. Groth, Of Counsel

Fillenwarth Dennerline Groth & Towe, LLP

429 E. Vermont Street, Ste. 200

Indianapolis, IN 46202

Telephone: (317) 353-9363

Fax: (317) 351-7232

E-mail:  wgroth at fdgtlaborlaw.com

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Christopher S. Elmendorf
Sent: Monday, May 22, 2017 6:51 PM
To: Guy-Uriel E. Charles; Justin Levitt; Rick Pildes
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Analysis of the Supreme Court's North Carolina Racial
Redistricting Decision

I agree with Rick P. that the most important part of today's decision in
Cooper v. Harris is the holding with respect to District 1. And I think—as
Guy hints—that it may create a huge change in what Section 2 is understood
to require in terms of state redistricting procedures going forward.

Rick P. says the decision means that "the mechancial creation of
majority-minority districts will no longer be constitutionally tolerated.”
He implies that jurisdictions are on safe ground if they undertake instead
to create “coalition or cross-over districts, in which black and white
political coalitions unite behind the same candidates.” I disagree with the
latter point. What triggered strict scrutiny of District 1 was not the fact
that its black population exceeded 50%. Rather, the trigger was that the
state “purposefully established a racial target”—which in this case happened
to be 50% (slip op. at 10).

If the redistricting process had been controlled by Democrats, and the
Democrats had set a firm racial target of 40%, this too would trigger strict
scrutiny under today's holding, at least insofar as it "produced boundaries
amplifying divisions between blacks and whites” (slip op. at 11). (By
“amplifying divisions,” I take the Court to mean creating districts whose
minority population share is a lot larger or a lot smaller than the
minority’s statewide population share.)

So how is a state to comply with s. 2 and equal protection at the same time?
The Court hints at its thinking on p. 15 of the slip opinion: "North
Carolina can point to no meaningful legislative inquiry into what it now
rightly identifies as the key issue: whether a new, enlarged District 1,
created without a focus on race but however else the State would choose,
could lead to § 2 liability.”

The idea seems to be that the state must first redistrict blind to race
(“however else it would choose”), then evaluate the resulting map for
compliance with Section 2, and then then make whatever minimal (?) changes
are necessary to have a “sound basis in evidence” for believing that the map
does not violate Section 2. Interestingly, Alaska's state supreme court
already requires this very procedure, but as a matter of state
constitutional law. See In re 2011 Redistricting Cases, 294 P.3d 1032
(Alaska 2012). North Carolina, as a matter of state constitutional law, had
taken precisely the opposite approach. See Dickson v. Rucho, 781 S.E.2d 404,
489-90 (N.C. 2015) (describing “the mandatory framework of our decision in
Stephenson I,” under which, “[f]irst, legislative districts required by the
VRA shall be formed before non-VRA districts are created”). 

Insofar as today’s decision in Cooper v. Harris adopts the Alaska framework,
the million dollar question going forward will be how a state redistricting
authority must assess its initial “race-blind” map for compliance with
Section 2. Under what circumstances must the redistricting authority leave
the initial map as-is (on pain of violating equal protection), as opposed to
modifying the map to improve minority electoral opportunity (lest it violate
s. 2)? Here De Grandy’s "rough proportionality" standard remains a live
possibility, with crossover districts and majority-minority districts
counted equally in the numerator. But I wouldn’t be surprised to see the
Court push the race-blindness idea further and adopt Judge Easterbrook’s
suggestion in Gonzalez v City of Aurora, Illinois, 535 F3d 594 (7th Cir.
2008) (benchmark is number of minority opportunity districts likely to be
created by a computer drawing compact districts blind to race). Nor would I
be surprised to see the Court require the redistricting authority to count
“influence” districts as well as “opportunity” districts in gauging whether
the race-blind map provides the minority community with sufficient electoral
opportunity. Cf. Bartlett v. Strickland, 556 U.S. 1, 25 (2009) (analogizing
crossover districts to influence districts—treating both as relevant to the
assessment of liability under s. 2 where they exist, yet inadequate to serve
as the “Gingles prong 1” predicate of a s. 2 claim where the state has opted
not to create them).

—Chris

Christopher S. Elmendorf

Martin Luther King, Jr. Professor of Law

UC Davis School of Law

From: <law-election-bounces at department-lists.uci.edu> on behalf of Guy-Uriel
Charles <Charles at law.duke.edu>
Date: Monday, May 22, 2017 at 12:08 PM
To: Justin Levitt <levittj at lls.edu>
Cc: "law-election at department-lists.uci.edu"
<law-election at department-lists.uci.edu>
Subject: Re: [EL] Analysis of the Supreme Court's North Carolina Racial
Redistricting Decision

I agree with Justin's takes here, including his argument that the Court does
not conflate race and party.  Indeed, what seems to be remarkable about this
opinion is that it brings standard equal protection analysis fully into
racial gerrymandering.  And if I were to have one disagreement with Justin,
it is his conclusion that the  opinion is good news.  This opinion may be
good news for Democrats, but it is not good news for voting rights
plaintiffs of color.  Applying standard equal protection clause analysis
will not likely benefit voters of color where their interests diverge from
those of Democrats.   Guy

On May 22, 2017, at 2:54 PM, Justin Levitt <levittj at lls.edu> wrote:

If you're looking for a reaction to the NC redistricting case from someone
not named Rick, I'll offer my version,
<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3F
p-3D92700&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2U
sK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuM
cnHU&s=QaxnoyLt348qd4sDlz2XWNqI-EaVbAOhe_re5VzQoZs&e=> now up on the
Election Law Blog.

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
<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_p
apers.cfm-3Fabstract-5Fid-3D2487426&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6
YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7
HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=Zq4EB5rHjkQ--1T0jUdPvBcVS0A6kBC_YBrvAyUzGKw
&e=> several other states now) in trouble.  

Instead, I think the Court "just" reiterated the notion that whether
<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_p
apers.cfm-3Fabstract-5Fid-3D2239491&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6
YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7
HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=rZwfMgTnMt_9RpzoDhoXHD537QkYCOvKE4_8PQnhU2w
&e=> tribally partisan 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
<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3F
p-3D92700&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2U
sK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuM
cnHU&s=QaxnoyLt348qd4sDlz2XWNqI-EaVbAOhe_re5VzQoZs&e=> on the blog, here.

Justin

-- 
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
 <http://ssrn.com/author=698321> 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,
<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_p
apers.cfm-3Fabstract-5Fid-3D1028607&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6
YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7
HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=_YiXfdSHJ2QIPxDEq_y7fjg_A9oN64HhcWj2dO_X6Ss
&e=> The Decline of Legally Mandated Representation, 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
<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3
Fp-3D92393&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2
UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubu
McnHU&s=nlugpn5Y_ZjCy6rkg3eD6BAMwzkWh_Gj5tL7mvsvGfU&e=> always said 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
<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_p
apers.cfm-3Fabstract-5Fid-3D304587&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6Y
HLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7H
uYCsjRbTX8nKtblnSm3VLubuMcnHU&s=ieFoYcXPX7fGyvThSDHh-ahekMoLZwAqlKLZYiJqAzg&
e=> coalitional or cross-over districts, 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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