The Supreme Court of the United States will hear oral argument today in two cases alleging racial gerrymandering, including McCrory v. Harris.
When creating new legislative maps, some states say that they feel stuck between a rock and a hard place. On the one hand, the Voting Rights Act requires states with large minority populations to consider race when drawing district lines. On the other hand, the Supreme Court has ruled that the Constitution bars states from making race the predominant factor when they draw districts.
McCrory v. Harris challenges two congressional district maps that the state’s legislature drew. The case deals specifically with districts 1 and 12, which SCOTUS Blog notes has been at the heart of four earlier racial gerrymandering cases at the court.
A three-judge panel ruled in February that the North Carolina Congressional District map was drawn with racial bias. The argument preview describes:
Defending the districts, North Carolina Republicans maintain that the redistricting of NC-12 was not about race, but was instead part of an effort to maximize the number of congressional districts that would elect Republican candidates. Indeed, they emphasize, the consultant who drew the plan only consulted political data from the 2008 presidential election and did not consider racial demographics at all when drawing the district. And because of the close correlation between race and political party, they argue, drawing legislative districts to account for the voters’ preferred political parties can result in district lines that correlate with race. When that happens, they continue, the plaintiffs must “do more than show that race is a possible explanation for a district’s lines.” Rather, they must demonstrate that the legislature “actually subordinated traditional race-neutral districting principles” to race.
The Republicans acknowledge that NC-1 was “intentionally drawn as majority-minority district,” but they reject any inference that race predominated in the redistricting process. Instead, they explain, the district needed to be “substantially altered” during the most recent redistricting because it was severely underpopulated. The state could not simply add voters from the nearby counties, in which a majority of voters are white, because it wanted to avoid running afoul of the Voting Rights Act – which they characterize as a real possibility when (among other things) a minority candidate had only won the most recent election in the district by a relatively small margin. The real question, they tell the justices, is what the state’s motives were in drawing a particular district, and whether “the legislature used politics as a pretext for intentionally discriminating against a minority group.” What courts should not do, they emphasize, is “ensnare legislatures that did their level best to comply with competing statutory and constitutional commands only to misjudge matters by a few percentage points.”
The plaintiffs who challenged the two congressional districts push back against the Republicans’ proffered justifications for the redistricting. They dismiss the Republicans’ explanation that NC-12 was drawn based on politics, rather than race, as an after-the-fact rationalization. Even the architects of the redistricting plan, they assert, indicated that the number of African-American voters in the district had been increased to comply with the Voting Rights Act. And both the shape of NC-12 and its racial demographics, they argue, are consistent with the district court’s conclusion that the North Carolina legislature “subordinated traditional districting criteria to racial considerations in crafting” the district.
The same is true, they continue, for NC-1, for which they describe the evidence that race was the predominant factor as “overwhelming.” The plan’s architects, they tell the justices, “repeatedly confirmed” that NC-1 was drawn as a “Voting Rights Act” district because “they believed, mistakenly,” that “they were required to draw majority-minority districts whenever possible.” In pursuit of that goal, the plaintiffs add, “traditional redistricting principles were cast aside whenever they got in the way of the overriding goal of drawing” the district so that it had a majority of African-American voters.
With only eight justices, the court may face a stiff challenge: how to reach a consensus that will reconcile the two lower-court rulings, which at least on their face point in two different directions, and – if possible – lay down broader principles to govern future racial gerrymandering cases. Next week’s oral arguments may provide some clues as to how the justices plan to tackle that challenge.
The other case is Bethune-Hill v. Virginia State Board of Elections, out of Virginia. In that case, the Supreme Court will decide whether the state’s Republican leaders gerrymandered electoral maps to decrease African American voting influence.