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

Tue May 23 12:30:39 PDT 2017

The court found that prong 3 was not satisfied in the pre-existing districts. If districts were drawn in a way that did not allow minority the community to elect candidates of choice, then there would be sufficient block voting by definition. The districts that North Carolina drew were not found to be not reasonably compact, just that the use of race to draw them was not justified. The districts as drawn did not violate Shaw.

      From: Nicholas Stephanopoulos <nicholas.stephanopoulos at gmail.com>
 To: David Ely <ely at compass-demographics.com> 
Cc: Justin Levitt <levittj at lls.edu>; "law-election at department-lists.uci.edu" <law-election at department-lists.uci.edu>
 Sent: Tuesday, May 23, 2017 12:12 PM
 Subject: Re: [EL] Analysis of the Supreme Court's North Carolina Racial Redistricting Decision

I think the answer is more likely to be no. In central North Carolina, I don't believe it's possible to draw a reasonably compact majority-minority district, so prong 1 isn't satisfied (see Shaw v. Hunt). In eastern North Carolina, it's unclear whether a reasonably compact majority-minority district can be drawn, and the Court held that there was insufficient white bloc voting to satisfy prong 3. So putting aside potential issues of intentional vote dilution, I don't think the Gingles factors can be satisfied in either area.

On Tue, May 23, 2017 at 1:56 PM, David Ely <ely at compass-demographics.com> wrote:

I think the answer to Justin's question is pretty clearly yes (If I understand the question correctly.). North Carolina has demonstrated that the first prong is met. (Possible to create 2 majority districts). If there were not 2 districts in which minority communities had an opportunity to elect, then certainly you would be able to meet the second and third prong. Given the issues here, not having 2 opportunity districts would almost certainly also satisfy the totality of circumstance requirement to find a section 2 violation. 

      From: Justin Levitt <levittj at lls.edu>
 To: law-election at department-lists. uci.edu 
 Sent: Tuesday, May 23, 2017 11:46 AM
 Subject: Re: [EL] Analysis of the Supreme Court's North Carolina Racial Redistricting Decision

  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@ 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

   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

   From: law-election-bounces at departmen t-lists.uci.edu <law-election-bounces at departme nt-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     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 socioeconomiccharacteristics, 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 intomajority-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 manymajority-minority districts, both in the South and elsewhere in the country, where  functioning crossover districts  could be drawn instead. In an   article 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.             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, 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        From: law-election-bounces at departmen t-lists.uci.edu [mailto:law-election-bounces at d epartment-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. 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) in trouble.   Instead, I think the Court "just"  reiterated the notion that whether  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  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 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, 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 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, 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 inredistricting.  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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