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NC voting rights expert: Gerrymandering ruling important but not a watershed development

Anita Earls (Photo courtesy of Southern Coalition for Social Justice)

Still thinking about last week’s U.S. Supreme Court decision about racial gerrymandering in North Carolina?

Anita Earls, Executive Director of the Southern Coalition for Social Justice, wrote a piece for SCOTUSblog analyzing the opinion, which she says “is not a watershed development in the theory of racial gerrymandering.”

She explains that the two central legal questions in Cooper v. Harris, formerly known as McCrory v. Harris, were already answered in prior cases:

“With regard to North Carolina’s Congressional District 1, which the legislature argued was justified as a race-based district because it was drawn to comply with Section 2 of the Voting Rights Act, the court applied Bartlett v. Strickland and Thornburg v. Gingles, to come to the unremarkable conclusion that absent evidence of the third prong of Gingles, the legislature was not justified in dramatically increasing the number of majority-black districts in the state. In other words, where white bloc voting is not usually defeating the candidate of choice of black voters — where coalition districts are working — the Voting Rights Act does not demand the creation of majority-black districts.

With regard to Congressional District 12, which the legislature defended as based on partisan factors, not race, the court followed Anderson v. Bessemer City to apply a clear-error standard of review to factual findings, and looked to Alabama Legislative Black Caucus v. Alabama and Bethune Hill v. Virginia Board of Elections for what a plaintiff must prove to establish that race was the predominant consideration in drawing a district. Indeed, reaching back to Arlington Heights v. Metropolitan Housing Development Corp., the court reminded us that ‘in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail.’

The dissent insists that Cromartie II requires a plaintiff in a racial-gerrymandering case to prove that an alternative districting plan exists that has the same partisan impact without the same racial demographics. The biggest elephant in the room here is the fact that the 2016 congressional redistricting plan enacted by the North Carolina General Assembly as a remedy for the Shaw v. Reno violation does just that. The state sent back to Congress ten Republicans and three Democrats, just as they had in 2014, and by all measures of partisan impact, the 2011 plan is only slightly more favorable to Republicans than the 2016 plan. All of that was known by the time this case was argued last December.

Although not breaking new ground, the court’s post-2010 census round of racial gerrymandering cases make clear that while not every district drawn as a majority-black or majority-Latino district is a racial gerrymander subject to strict scrutiny, states seeking to use packing to weaken the voting strength of black or Latino voters cannot hide behind the Voting Rights Act to do so.

Most importantly, this line of cases, and particularly Kagan’s opinion in Cooper, should put to rest the false dichotomy of ‘is it race or is it party’ that threatened to turn racial-gerrymandering doctrine into a meaningless standard. The census data puts racial data squarely in front of legislators enacting redistricting plans. In most states, election returns showing past voting patterns are also routinely in front of legislators. Party affiliation and voting patterns are also almost everywhere correlated to race. In the absence of direct ‘smoking gun’ evidence of legislative intent, teasing out legislative motive from a binary framework of deciding whether race or party was the predominant factor is an abstraction that does not reflect the real world.”

You can read the full post here.

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