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The
tectonic plates of redistricting law are starting to slide—and quickly. Earlier
this year, a three-judge district court struck
down Wisconsin’s state legislative map as an unconstitutional partisan
gerrymander, the first such holding by any federal court in more than a
generation. Federal courts in Maryland and North
Carolina
have also issued supportive rulings in current partisan gerrymandering cases,
allowing the plaintiffs' claims to proceed to trial.
Meanwhile,
yesterday’s Supreme Court decision in Cooper
v. Harris,
the North Carolina racial gerrymandering case, augurs a major recontouring of
the redistricting landscape as the Equal Protection plate comes
crashing into the Voting Rights Act (VRA) plate. Section 2 of the VRA has long
been understood to require the drawing of electoral districts in which racial
minorities can elect their “candidates of choice” in locales where white and
minority voters have very different political preferences. Yet since the 1990s,
the equal protection clause has required strict scrutiny of any district in
whose design race was the “predominant factor.” The Constitution disfavors the
intentional sorting of voters among districts on the basis of their race. Until
recently, however, it was widely thought that the “predominant factor” test for
racial sorting / equal protection claims would be met only as to districts in
which both (1) minority citizens comprise a majority of the voting-age
population, and (2) the district’s boundaries are wildly incongruent with
“traditional districting principles,” such as compactness and respect for local
government boundaries.
But
in Bethune Hill v.
Virginia,
decided two months ago, the Supreme Court clarified that the “predominant
factor” test is satisfied whenever race was the overriding reason for moving a
group of voters into or out of a district, irrespective of the district’s
apparent conformity to traditional criteria. Then, in the unanimous portion of Cooper
v. Harris, the Court applied strict scrutiny to a district because the
state had “purposefully established a racial target” for its
composition, and selectively moved heavily black precincts into the district to
achieve that target. In the Republican redistricting plan at issue in Cooper, the
target was 50% black. In a Democratic gerrymander of North Carolina, the target
would probably be smaller, perhaps 40% black, to more efficiently distribute
reliable black Democratic voters while continuing to enable the election of
some black candidates. But the actual threshold (50% vs. 40%) seems legally
irrelevant.
How
then is a state to comply with Section 2 of the Voting Rights Act, which, as
noted above, has long required states to create districts with
enough minority voters (a "racial target") to consistently elect
minority “candidates of choice.” One unhappy possibility is that the Court will
simply undertake to free redistricters from the latter obligation, holding
Section 2 unconstitutional or narrowing it beyond recognition on the basis of
an asserted conflict with the anti-sorting equal protection principle.
Another
possibility is that federal courts will require redistricters to follow a path established by
Alaska's Supreme Court as a matter of state constitutional law. In Alaska,
the state must first redistrict blind to race, then evaluate the resulting map
for compliance with Section 2, and then make whatever minimal (?) changes are
necessary prevent a Section 2 violation. Cooper v. Harris hints at this
approach. Striking down District 1, the Court explained: "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 [enlarged to
comply with one person, one vote], created without a focus on race but
however else the State would choose, could lead to § 2 liability.”
Insofar
as today’s decision in Cooper advances the Alaska framework,
the million dollar question will be how a state redistricting authority must
assess its initial race-blind map for compliance with Section 2. Here the law
could evolve in any number of directions, but given the Supreme Court’s
aversion to racial targets, the Court may well allow states to count for
Section 2 compliance purposes any district in which minority voters are likely
to wield some influence (say, any district with a Democratic majority, or any
district in which Democrats would lose their working majority if no minority
voters went to the polls). This would represent a dramatic change in the law of
Section 2, since until now nearly all courts have focused on the question of
whether districts enable the election of authentic candidates of choice of the
minority community, rather than minimally acceptable (and usually white)
Democrats.
Of
course, all of this is somewhat speculative. Writing at
SCOTUSblog,
Kristen Clarke and Ezra Rosenberg argue that Cooper and Bethune
Hill, read together, require plaintiffs bringing a racial sorting / equal
protection claim to show (as the trigger for strict scrutiny) quite a
bit more than the existence of a firm racial-composition target plus the
movement of voters to achieve the target. I’m not convinced, but for now,
there’s enough looseness in the doctrine for lower courts to go
either way on this question.
What
is clear is that the Supreme Court, unhappy about racial sorting, is
on guard against pretextual justifications for the
practice. As Justice Kennedy for the Court remarked in Bethune Hill, “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, any redistricters who undertake to draw districts with a
racial-composition target (majority-minority or otherwise) would do well to
announce that the target is merely one objective to be considered and balanced
alongside many others, rather than a categorical command. The crossing of fingers
is also recommended.
Christopher S. Elmendorf is Martin Luther King, Jr. Professor of Law at UC Davis School of Law. You can reach him by e-mail at cselmendorf at ucdavis.edu