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

[Christopher S. Elmendorf]

Justin disagrees with my reading of Cooper as holding that a firm racial target triggers strict scrutiny, provided of course that the target actually results in moving a cluster of white or minority voters into or out of the district in question. In Justin’s view, strict scrutiny applies only if the state’s decision to move those voters cannot be explained as a “race and __” decision—e.g., race & compactness, race & incumbency protection, race & respect for subdivision boundaries, etc. If a racial target alone sufficed to trigger strict scrutiny, he says, the Court shouldn’t have remanded in Alabama Legislative Black Caucus. Similarly, Kristen Clarke and Ezra Rosenberg in their contribution to the Scotusblog symposium<http://www.scotusblog.com/2017/05/symposium-court-clarifies-review-racial-gerrymandering-not-impose-strict-scrutiny-every-intentional-creation-majority-minority-district/#more-255989> argue that the Court’s decision earlier this year in Bethune Hill “makes no sense” if racial targets as such trigger strict scrutiny, because there the Court also remanded for a finding on predominance after clarifying the law (rather than finding predominance as a matter of law given the redistricters’ use of a racial target).

I’m not convinced. In both of those cases, the remands can be understood in purely institutional terms. It’s the Supreme Court’s job to clarify the law, and the district’s court’s job to apply law to facts in the first intance. Moreover, there are statements in Alabama Legislative Black Caucus and Bethune Hill that seem quite consistent with the view that a racial-composition target entails “predominance" insofar as the target is established at the outset of the districting process and lexically prioritized over other objectives. See Alabama Legislative Black Caucus, 135 S.Ct. at 1271 ("once the legislature’s 'equal population' objectives are put to the side—i.e., seen as a background principle—then there is strong, perhaps overwhelming, evidence that race did predominate as a factor when the legislature drew the boundaries of . . . the one district that the parties have discussed here in depth); Bethune Hill, 137 S.Ct. at 798 (race predominates if race was the criterion that, in the State’s view, could not be compromised). The decision to remand in Bethune Hill may also have reflected evidentiary uncertainties about whether the racial target had been treated by the redistricters as "an aspiration or a target or a rule.” 137 S.Ct. at 795.

Bethune Hill actually anticipates and, as I read it, cautions against the kind of “race and __” justification that Justin believes sufficient to exempt a district that meets the racial target from strict scrutiny. See 137 S.Ct. at 799 (“Traditional redistricting principles . . . are numerous and malleable . . . . By deploying those factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”)

Going forward, redistricters who undertake to draw districts with any racial-composition target (majority-minority or otherwise) should probably announce that the target is merely one objective to be considered and balanced alongside many others, rather than a categorical priority.

--Chris

Christopher S. Elmendorf
Martin Luther King, Jr. Professor of Law
UC Davis School of Law


From: Justin Levitt <levittj at lls.edu<mailto:levittj at lls.edu>>
Date: Monday, May 22, 2017 at 4:47 PM
To: Chris Elmendorf <cselmendorf at ucdavis.edu<mailto:cselmendorf at ucdavis.edu>>, Guy-Uriel Charles <Charles at law.duke.edu<mailto:Charles at law.duke.edu>>, Rick Pildes <PILDESR at juris.law.nyu.edu<mailto:PILDESR at juris.law.nyu.edu>>
Cc: "law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>" <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

With apologies to the list for the continuing back and forth:

I don't think it's right that the existence of a target necessarily means that race predominated.  There's no way to reconcile that approach with the Alabama<https://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf> case, where the Court found there was clearly a target ... but nevertheless remanded to see whether race predominated.

Instead, I think the key is from just a bit below the part Chris points out: predominance only kicks in when a target "subordinated other districting criteria and produced boundaries amplifying [racial] divisions."

This means that the racial target has to be the predominant factor "motivating the legislature's decision to place a significant number of voters within or without a particular district."  Not just an important factor, but the predominant one -- and one that actually drove the drawing of particular lines at the expense of other factors.  In North Carolina, the person drawing the lines testified that in drawing the district (unnecessarily) to get over 50%, he reached out to grab individuals specifically because of their race.  That was enough to affirm the lower court.

But I don't think today's opinion demands the Alaska process Chris describes.  The quote Chris mentions is pulled from the court's discussion of strict scrutiny -- and in order to satisfy strict scrutiny, a state will need to show a good faith basis for its choices.  But plaintiffs will never get to strict scrutiny if they cannot establish that race predominated.  Which means that where the direct and/or circumstantial evidence shows that particular lines are driven by race and -- race and maintaining precinct lines, or race and modest compactness, or race and following locally significant streets or highways, or race and maintaining communities of interest, or race and a number of different considerations -- a plaintiff's case will (and should) fail.

Nothing in today's opinion prevents states from considering race, or prevents them from drawing districts while conscious of VRA considerations.  It doesn't even prevent the use of a target.  As long as race doesn't predominate in a legislature's decision to put particular people inside or outside the district, any of the above is entirely fine.  It's just that if race is the single be-all, end-all explaining why particular people were kicked in or out, there had better be a very good reason.

Justin

On 5/22/2017 3:50 PM, Christopher S. Elmendorf wrote:
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<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Guy-Uriel Charles <Charles at law.duke.edu<mailto:Charles at law.duke.edu>>
Date: Monday, May 22, 2017 at 12:08 PM
To: Justin Levitt <levittj at lls.edu<mailto:levittj at lls.edu>>
Cc: "law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>" <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

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<mailto: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, now up on the Election Law Blog<https://urldefense.proofpoint.com/v2/url?u=http-3A__electionlawblog.org_-3Fp-3D92700&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=QaxnoyLt348qd4sDlz2XWNqI-EaVbAOhe_re5VzQoZs&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=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=Zq4EB5rHjkQ--1T0jUdPvBcVS0A6kBC_YBrvAyUzGKw&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=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=rZwfMgTnMt_9RpzoDhoXHD537QkYCOvKE4_8PQnhU2w&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=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=QaxnoyLt348qd4sDlz2XWNqI-EaVbAOhe_re5VzQoZs&e=>.

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<http://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://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D1028607&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=_YiXfdSHJ2QIPxDEq_y7fjg_A9oN64HhcWj2dO_X6Ss&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 havealways said<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D92393&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=nlugpn5Y_ZjCy6rkg3eD6BAMwzkWh_Gj5tL7mvsvGfU&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 called coalitional or cross-over districts<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D304587&d=DwMD-g&c=imBPVzF25OnBgGmVOlcsiEgHoG1i6YHLR0Sj_gZ4adc&r=d0QtrWt2UsK3E_3jflzx-PHJlNtl73NzZkWTMFdtu-A&m=dBuCQar296K_7HuYCsjRbTX8nKtblnSm3VLubuMcnHU&s=ieFoYcXPX7fGyvThSDHh-ahekMoLZwAqlKLZYiJqAzg&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



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