A key chapter in North Carolina’s long running attack on one
of our Constitution’s most cherished principles—equal political opportunity for
all regardless of race—comes to the Supreme Court next week. The pair of redistricting cases the Justices
will hear (one from North Carolina, one from Virginia), which have gone largely
unnoticed, will be an
important test for the Roberts Court. In deciding these cases, it will be critical
that the Court ensure that states respect the Constitution’s promise of equal
opportunity for all, reflected in the Fourteenth and Fifteenth Amendments, and
the Voting Rights Act.
Over the last five years, North Carolina has repeatedly
acted to violate the Constitution’s fundamental principles of voting rights and
political equality that undergird our democracy. In the wake of the Supreme Court’s decision
in Shelby County v. Holder gutting a
key part of the Voting Rights Act, the North Carolina legislature enacted what
the Fourth Circuit called “the most restrictive voting legislation seen in
North Carolina since the enactment of the Voting Rights Act of 1965,”
“target[ing] African Americans with almost surgical precision.” The Fourth Circuit’s decision in N.C. State Conference of the NAACP v.
McCrory, handed down last July, invalidated the state legislature’s effort
to cut back on early voting, but a number of local election boards eliminated
key early voting hours anyway, a result that may have been responsible for the
depressed African American turnout during the 2016 election. In addition to these restrictions on access
to the ballot, the North Carolina legislature has sought to pack African
Americans into state and congressional districts, lessening their influence
elsewhere through blatant racial gerrymanders.
On
December 5, the Supreme Court will consider the constitutionality of North
Carolina’s Congressional Districts 1 and 12, two huge sprawling districts whose
bizarre shapes were dictated by racial considerations. In addition to that case, McCrory v. Harris, the
Court will also be hearing a companion case out of Virginia, Bethune-Hill v. Virginia Board of
Elections. In both cases, state legislatures sought to
pack racial minorities into a handful of districts, using fixed racial quotas
which produced badly misshapen districts.
And in both cases, the states
claim “the Voting Rights Act made me do it,” based on a cartoonish
version of the Voting Rights Act’s guarantee of equal political
opportunity.
The
facts of McCrory illustrate what is
at stake. In 2011, the North Carolina
legislature turned Congressional Districts 1 and 12 into majority-minority
districts, ignoring that in these districts, African Americans had previously been
successful in electing candidates of their choice by forming coalitions with
like-minded white voters. The resulting
districts cannot be squared with the Fourteenth and Fifteenth Amendment’s
guarantees of equality. The legislature
used race for the predominant purpose of packing African Americans into certain
districts, thereby curbing their influence elsewhere. And because African Americans in those
districts had previously acted with white voters, in line with the promise of
the Fourteenth and Fifteenth Amendments, to elect candidates of their choice,
the Voting Rights Act plainly did not compel the redistricting. States may not use a racial quota to pack
racial minorities into certain districts under the guise of Voting Rights Act
compliance.
In
striking down North Carolina’s omnibus voter suppression law, the Fourth
Circuit observed that a political party holding a majority of seats in the
legislature may not “entrench itself . . . by targeting voters who, based on
race, were unlikely to vote for the majority party,” making clear that efforts
to seek partisan gain “cannot be accepted where politics as usual translates
into race-based discrimination.” The
same principle condemns North Carolina’s racial gerrymanders. In drawing Congressional Districts 1 and 12, race predominated over traditional
districting criteria, producing monstrously misshapen districts whose lines can
only be explained by the legislature’s desire to pack African Americans into those
districts. The history of past and
continuing racial discrimination in North Carolina—from 2011 until today—paints
a powerful picture of how North Carolina has sought to marginalize African
American voters, whether by making it harder for them to vote or by packing
them into districts.
The
Justices need not break new ground to invalidate the racial gerrymanders in McCrory and Bethune-Hill. It need only apply
its past cases, which make clear that the Constitution does not tolerate racial
discrimination in the drawing of district lines. Two years ago, in a case involving a racial
gerrymander enacted by the Alabama legislature, the Court made clear that the
Voting Rights Act requires “tak[ing] account of all significant circumstances,”
not “mechanically rely[ing] on numerical percentages,” as the North Carolina
and Virginia legislatures did. States
may draw majority-minority districts to help realize the promise of equality
contained in the Fourteenth and Fifteenth Amendments, but they must do so based
on hard evidence, not on racial quotas.
Upholding that principle would be an important victory not only for
those challenging these district lines, but also for our Constitution’s promise
of equal political opportunity for all.
David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.