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

[Mark Rush]

Thanks, Justin--fair enough.  But, that could change if the incumbents
retire.

On Tue, May 23, 2017 at 2:44 PM, Justin Levitt <levittj at lls.edu> wrote:

> I think both the conversation we've been having and the North Carolina
> opinion itself show that that's not quite the right question.
>
> Perhaps a friendly amendment: the question is really whether, at the end
> of the day, North Carolina needs to create two districts providing the
> minority community with an opportunity to elect candidates of choice.  The
> election results showed that both pre-existing districts got there without
> being "majority-minority."
>
> On 5/23/2017 11:12 AM, Mark Rush wrote:
>
> Hi all--
>
> A basic question:  Am I correct that, at the end of the day, North
> Carolina still needs to create two majority-minority districts?  Thanks to
> all.
>
> On Tue, May 23, 2017 at 1:34 PM, Nicholas Stephanopoulos <
> nicholas.stephanopoulos at gmail.com> wrote:
>
>> The way to reconcile this tension, I think, is to treat the crossover
>> district as a *remedy* for a Section 2 violation (or a prophylactic
>> measure against future Section 2 liability). After all, in *every *minority
>> opportunity district (crossover or not), there's insufficient white bloc
>> voting to defeat the minority-preferred candidate. That doesn't mean that
>> Section 2 becomes inapplicable once the opportunity district is drawn; it
>> means that Section 2 has been complied with through the opportunity
>> district's creation.
>>
>> On Tue, May 23, 2017 at 12:26 PM, Pamela S Karlan <pkarlan at stanford.edu>
>> wrote:
>>
>>> But the third prong of Gingles is not simply that there be majority-bloc
>>> voting, but that that bloc voting be sufficient to defeat the minority's
>>> preferred candidate.  In the example from Justice Souter, while there's
>>> lots of bloc voting, it's not causing the defeat of the minority-preferred
>>> candidate.
>>>
>>>
>>> I agree with your larger point about remedies and the like.  I'm just
>>> saying that it's hard simultaneously to claim that something is a crossover
>>> district and that the white voters in that district vote sufficiently as a
>>> bloc so as usually to defeat the minority's candidate of choice (the third
>>> Gingles prong).
>>>
>>>
>>> Pamela S. Karlan
>>>
>>> Kenneth and Harle Montgomery Professor of Public Interest Law
>>>
>>> Co-Director, Supreme Court Litigation Clinic
>>>
>>> Stanford Law School
>>>
>>> karlan at stanford.edu
>>>
>>> 650-725-4851 <%28650%29%20725-4851>
>>>
>>>
>>> ------------------------------
>>> *From:* Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com>
>>> *Sent:* Tuesday, May 23, 2017 10:22 AM
>>> *To:* Pamela S Karlan
>>> *Cc:* Pildes, Rick; law-election at department-lists.uci.edu
>>>
>>> *Subject:* Re: [EL] Analysis of the Supreme Court's North Carolina
>>> Racial Redistricting Decision
>>>
>>> It's certainly true that in *some* crossover districts (like North
>>> Carolina's District 1), the third *Gingles* criterion can't be
>>> satisfied because the level of crossover voting is too high. (Though I'd
>>> note that to determine this with confidence, a proper racial polarization
>>> analysis would be better than just data on minority population share and
>>> election outcomes.) But there are clearly other crossover districts where
>>> the third *Gingles* criterion can be satisfied. Here's a good example
>>> from Justice Souter's dissent in *Bartlett*:
>>>
>>> "If a minority population with 49% of the CVAP can elect the candidate
>>> of its choice with crossover by 2% of white voters, the minority 'by
>>> definition' relies on white support to elect its preferred candidate. But
>>> this fact alone would raise no doubt, as a matter of definition or
>>> otherwise, that the majority-bloc-voting requirement could be met, since as
>>> much as 98% of the majority may have voted against the minority’s candidate
>>> of choice."
>>>
>>> Based on *Bartlett *and *Cooper*, I think it's now clear that (1) the
>>> potential existence of such a crossover district isn't enough to satisfy
>>> the first *Gingles* prong -- it has to be possible to draw another
>>> majority-minority district; but (2) such a crossover district can be
>>> created by a jurisdiction as a remedy for a Section 2 violation; and (3) if
>>> such a district is dismantled, there can be liability under Section 2
>>> (provided all of the *Gingles* prongs are satisfied).
>>>
>>> On Tue, May 23, 2017 at 11:46 AM, Pamela S Karlan <pkarlan at stanford.edu>
>>> wrote:
>>>
>>>> The discussion on the list has been very interesting.  Nick writes that
>>>>
>>>> 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 *Gingles* precondition. However, the Court’s
>>>> opinion hinted pretty clearly that crossover districts are acceptable
>>>> Section 2 remedies, even under conditions of severe racial polarization.
>>>>
>>>>
>>>> I was a bit confused by this.  The third Gingles precondition is that "the
>>>> minority must be able to demonstrate that the white majority votes
>>>> sufficiently as a bloc to enable it - in the absence of special
>>>> circumstances, such as the minority candidate running unopposed, . . . -
>>>> usually to defeat the minority's preferred candidate."  Gingles, 478
>>>> U.S. at 51.  So I'm not sure that there can *be* crossover districts
>>>> in the face of the third Gingles precondition.
>>>>
>>>>
>>>> To be sure, there can be crossover districts in the face of significant
>>>> white bloc voting.  E.g., in a district where the electorate is 40% black
>>>> and black voters are entirely cohesive, the black voters' candidate of
>>>> choice can win even if only about 18 percent of the white electorate
>>>> crosses over.  But if that crossover occurs consistently, then the third
>>>> Gingles precondition won't be satisfied, will it?
>>>>
>>>>
>>>> Pamela S. Karlan
>>>>
>>>> Kenneth and Harle Montgomery Professor of Public Interest Law
>>>>
>>>> Co-Director, Supreme Court Litigation Clinic
>>>>
>>>> Stanford Law School
>>>>
>>>> karlan at stanford.edu
>>>>
>>>> 650-725-4851 <%28650%29%20725-4851>
>>>>
>>>>
>>>> ------------------------------
>>>> *From:* law-election-bounces at department-lists.uci.edu <
>>>> law-election-bounces at department-lists.uci.edu> on behalf of Pildes,
>>>> Rick <pildesr at mercury.law.nyu.edu>
>>>> *Sent:* Monday, May 22, 2017 3:18 PM
>>>> *To:* Nicholas Stephanopoulos
>>>> *Cc:* law-election at department-lists.uci.edu
>>>>
>>>> *Subject:* Re: [EL] Analysis of the Supreme Court's North Carolina
>>>> Racial Redistricting Decision
>>>>
>>>>
>>>> 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 <%28212%29%20998-6377>
>>>>
>>>>
>>>>
>>>> *From:* Nicholas Stephanopoulos [mailto:nicholas.stephanopoulo
>>>> s at gmail.com]
>>>> *Sent:* Monday, May 22, 2017 4:37 PM
>>>> *To:* Pildes, Rick
>>>> *Cc:* Justin Levitt; 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 *Gingles* precondition. 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://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336749> 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.
>>>>
>>>>
>>>>
>>>>  [image: Inline image 1]
>>>>
>>>>
>>>>
>>>> On Mon, May 22, 2017 at 2:18 PM, Pildes, Rick <
>>>> 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 <http://electionlawblog.org/?p=92706>, 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 <%28212%29%20998-6377>
>>>>
>>>>
>>>>
>>>> *From:* 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
>>>> *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 <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 <%28213%29%20736-7417>
>>>>
>>>> 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 <%28212%29%20998-6377>
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>>
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>>>>
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>>>>
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>>>>
>>>>
>>>>
>>>> _______________________________________________ Law-election mailing
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>>>>
>>>>
>>>> --
>>>>
>>>> Nicholas O. Stephanopoulos Assistant Professor of Law University of
>>>> Chicago Law School nsteph at uchicago.edu (773) 702-4226
>>>> http://www.law.uchicago.edu/faculty/stephanopoulos
>>>>
>>> --
>>> Nicholas O. Stephanopoulos Assistant Professor of Law University of
>>> Chicago Law School nsteph at uchicago.edu (773) 702-4226
>>> http://www.law.uchicago.edu/faculty/stephanopoulos
>>>
>> --
>> Nicholas O. Stephanopoulos Assistant Professor of Law University of
>> Chicago Law School nsteph at uchicago.edu (773) 702-4226
>> http://www.law.uchicago.edu/faculty/stephanopoulos
>> _______________________________________________ Law-election mailing
>> list Law-election at department-lists.uci.edu http://department-lists.uci.ed
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>
> --
> Mark Rush
>
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-- 
Mark Rush
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