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Why The Supreme Court’s Liberals Flipflopped On Race-Based Gerrymandering


Last week, the Supreme Court ruled that two of North Carolina’s congressional districts are unconstitutionally constructed based on race. In doing so, the court further clouded an already opaque line of case law and made it even more difficult for states to comply with the Voting Rights Act. It also inadvertently called parts of the VRA into question in a way that could reshape the congressional delegations from the South in a manner the court likely did not intend.

The ruling in Cooper v. Harris is the culmination of two decades of litigation. The history of that district is important in understanding the twisting strands of jurisprudence and shifting theories of democratic representation that led us to this point. A look at that history will show how the Supreme Court’s liberal justices abandoned their principles in pursuit of a purely political win for Democrats.

Racial Gerrymandering and the Voting Rights Act

North Carolina’s congressional delegation gained a twelfth House seat after the 1990 census, which coincided with some new VRA interpretations from the U.S. Department of Justice. The VRA was originally read to bar states from using their voting laws—including the drawing of district lines—to dilute the votes of minority groups. By the 1990s, the DOJ had come to believe that the best way to uphold this provision was to require that states with significant minority populations maximize the number of districts with majority-minority populations.

In North Carolina in 1991, this meant making two majority-black districts instead of the one the Democratic state legislature had proposed. Earlier court rulings also required that all districts be equal in population, and because the black population of North Carolina was not all in one place, this ensured the legislature would do some creative line-drawing. The result was this map, with the 12th district there in pink:

It’s not a pretty picture, and in the 1993 Supreme Court case that resulted, Shaw v. Reno, Justice Sandra Day O’Connor called the lines a “bizarre shape.” The case forced the Supreme Court to confront for the first time the contradictory aims of not diluting the black vote while also not gerrymandering people on the basis of race. At that point, Republicans were among those challenging the district lines.

It’s not easy to square the circle. Distributing black North Carolinians equally across all districts would, given the racial polarization of voting then prevalent, have likely resulted in districts sending 12 white representatives to Congress. On the other hand, cramming most into two serpentine districts destroyed the idea that each congressman represents a discrete geographic community. The lines of the 12th district, like those of the 1st (the brown inkblot in the eastern part of the map) were not contiguous with any one region, but built to capture the members of one race and separate them from the other, elevating race over all other factors. As Justice O’Connor put it,

A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid.

The court held that, under the Constitution’s Equal Protection Clause, race-based redistricting must be held to a standard of strict scrutiny—it would only be allowed if it were in pursuit of a compelling government interest, narrowly tailored to achieve that interest, and the least restrictive means to achieve it. They sent the matter back to the lower court to sort it out, and after another Supreme Court case, Shaw v. Hunt, the Supreme Court held that although the state’s purpose was to obey the DOJ requirement, the remedy the state chose was not narrowly tailored.

Essentially, the Shaw cases allow and even encourage states to create majority-minority districts, but they can’t go crazy with it. The court was clearly unsettled by the “highly irregular and geographically non compact” district, but had difficulty articulating a standard for how weird-looking was too weird-looking. As with Justice Potter Stewart’s famous definition of pornography, on racial gerrymandering the court knew it when they saw it.

In 1997, the state redrew the lines to be similar, but less stretched out and meandering:

The districts were less ugly, but intended to achieve the same result. The 1997 map was meant for the 1998 election, but further litigation in district court found it still to violate the Equal Protection Clause. The legislature scrambled to draw an even more compact set of districts in time for the 1998 election while the district court decision was on appeal. This was the result:

Are the Lines Political or Racial?

Although this reduced the 12th district down to 47 percent black, the incumbent Democrat, Mel Watt, was still re-elected with 55 percent of the vote (down from 71 percent in 1996). The case reached the Supreme Court the next year in Hunt v. Cromartie.

With the lessons of the Shaw cases in mind, the legislature claimed that the lines they drew in 1997 were not race-based but party-based. Their goals were protecting incumbents, which was constitutionally permissible, and not racial, which might not be. The high court sent the case back to the district court, which did not buy the legislature’s story and held that the gerrymander was race-based and unconstitutional.

In 2001, the Supreme Court heard the appeal from that decision in the case of Easley v. Cromartie. This time, by a 5-4 vote, the Supreme Court sided with the legislature. The opinion, written by Justice Stephen Breyer, held that because the categories of black voters and Democratic voters so heavily overlapped, it was difficult to say what the legislature’s motives were and, absent more evidence, they would assume the permissible motive of incumbent protection.

Of course, by that time the 2000 census had been compiled and new districts were needed in any case, but the ruling in the Cromartie cases would still influence the state legislature’s next attempt. In 2001 the legislature, still controlled by Democrats, drew a map that helped incumbents and divided the state’s congressional delegation almost evenly, producing six Democrats and seven Republicans (the state had gained a thirteenth seat in reapportionment that year). The result looked a lot like the 1997 map but, as it was done for avowedly partisan purposes, the Supreme Court did not get involved.

The Shaw and Cromartie cases produced a strange, intent-based way of looking at redistricting. Race-based line-drawing was forbidden, unless it was strictly necessary to comply with the VRA’s goals of ensuring minority representation and remedying past discrimination. Party-based line-drawing, on the other hand, was mostly allowed and examined far less rigorously. Redistricting cases involving race became exercises in divining legislative intent as much as looking at maps. Such a tricky and uncertain process often leads to the judge substituting his or her perception for the legislature’s intent.

It’s Different When Republicans Do It

The results under the 2001 map held steady as Democrats held between six and eight of the 13 seats throughout the decade. In 2010, a new census called for new districts, but this time Republicans controlled the state legislature for the first time in a century. Their increasing dominance in the South combined with new technology in redistricting led to a 2011 map that was more convoluted than any that came before:

The aim was the same—political gerrymandering—and that purpose still overlapped heavily with racial gerrymandering. But this time the players were different. The new lines produced a 9-4 Republican delegation, which increased to 10-3 after the 2014 midterms. Now Republicans were demanding that the map be upheld and their professed intent be taken at face value, while Democrats now called the map a racist disgrace and demanded that the courts alter it. The parties’ flip-flop was so routine that it went largely unremarked upon, but it does show both sides aimed for political power first, and constitutional theory second.

In the 2011 map, Republicans increased the black population of the 12th district from 43.8 percent to 50.7 percent. In their telling, this was to ensure continued compliance with the VRA while maximizing Republican advantage in the surrounding districts. Now that Republicans had bought into their former theory, however, Democrats abandoned it, saying the new lines were primarily race-based, with political considerations a smokescreen for an impermissible purpose. The district court and appeals court opinions focused on this and found against the legislature, ordering new districts to be created for the 2016 elections.

Are Liberals Abandoning the Voting Rights Act?

The Supreme Court appeal in that case, Cooper v. Harris, came down this week. It played out partly along the lines of intent, with one side believing the legislature’s professed purpose and the other doubting it. In Cooper, though, an additional wrinkle emerged. The majority opinion, written by Justice Elena Kagan, questioned the need for the 12th district to be majority-black at all.

The Constitution does not typically allow for dividing people on the basis of race. As discussed in the Shaw opinions and elsewhere, it is only allowed in congressional districting because of the history of black disenfranchisement, and even then is only permitted under certain strict conditions. One of these conditions is that the region’s white majority “must vote sufficiently as a bloc to usually defeat the minority’s preferred candidate.”

Justice Thomas is the modern-day intellectual descendant of Justice John Marshall Harlan, who famously wrote in 1896 that ‘our constitution is color-blind, and neither knows nor tolerates classes among citizens.’

That was certainly the case at the time that the VRA was passed in 1965, when despite a sizable black population North Carolina had not elected a black representative since 1898. But according to Kagan and four other justices, by 2017 “electoral history provided no evidence that … could demonstrate … effective white bloc-voting.”

That’s quite a shift for the court’s four liberal justices. Four years ago, in Shelby County v. Holder, Kagan joined three other liberals on the court in dissenting from a ruling premised on that very proposition. In that case, five conservative justices struck down one section of the VRA because “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” The liberals, led by the redoubtable Justice Ruth Bader Ginsburg, joined in a fiery dissent stating that in 2013 the VRA “surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens.” By 2017, apparently it had.

The mirror image of the flip-flop is seen on the conservatives’ dissent in Cooper, but their reasoning is more plausible, being at least based on the court’s precedents. Justice Samuel Alito wrote for the three dissenters in Cooper (Justice Neil Gorsuch did not participate in the decision). One of his primary complaints is that the liberals ignored the precedent of the Cromartie cases, in which the political gerrymander was permissible where a racial one was not.

To Alito, the case deals with a political gerrymander, making the presence or absence of white racial-bloc voting irrelevant—they’re different issues requiring different analyses. The Kagan group, on the other hand, sees this as a race case but twists the logic 180 degrees from their ruling in a similar race case in Shelby County.

The only consistent justice in all of this is Justice Clarence Thomas. Thomas joined the conservatives in striking down VRA preclearance in Shelby County and joined the liberals in ignoring VRA anti-dilution rules in Cooper. That is unsurprising; Thomas has always been the most logically consistent justice on the Supreme Court. His position has always been that race-based districting is suspect, no matter what the VRA says.

Thomas is the modern-day intellectual descendant of Justice John Marshall Harlan, who famously wrote in 1896 that “our constitution is color-blind, and neither knows nor tolerates classes among citizens.” Other justices accept this ideal only when it suits their purposes. In 2013, the liberals believed racism in voting patterns to be so widespread that it required a federal bureaucracy to ensure minority voting rights. In 2017, they proclaimed race-based voting patterns to have ended. The switch is so results-based as to defy any other explanation.

We should hope for higher principles from our highest court. On redistricting, at least, Justice Thomas is the only up to the job.