by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
How can the General Assembly draw state legislative and congressional districts that comply with the Voting Rights Act (VRA) without illegally making racial considerations predominate in drawing those districts? The General Assembly has already taken a correct first step: banning the use of racial data.
The VRA prohibits states from actions that result in the “denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” A later amendment to the VRA added membership in a “language minority group” (such as Spanish speakers) as a protected class.
Related to redistricting, Section 2 of the VRA prohibits drawing district plans that result in language minority or racial groups having “less opportunity than other members of the electorate to … elect representatives of their choice.”
The VRA is not a scheme for racial proportional representation. Section 2 specifically spells out that it does not establish a right for minorities to have representation “in numbers equal to their proportion in the population.” The United States Supreme Court specified in Thornburg v Gingles (1986) that a language minority or racial group must be “sufficiently large and geographically compact to constitute a majority in a single-member district.” For example, while Latinos constitute over ten percent of North Carolina’s population, they are spread across the state, making it impossible to draw a Latino majority in any of North Carolina’s 14 congressional districts.
So we have two elements to consider regarding minority representation in redistricting under the VRA: sufficiently large populations of minority voters and geographically compact areas. Those elements lend themselves to different approaches towards fulfilling compliance with the VRA.
The first approach emphasizes seeking large populations of minority voters and then using them as building blocks to produce VRA-compliant district maps. To do that, you would need data on the race of all voters in the state. Several legislators and a left-wing litigant called for using racial data during hearings in August.
The danger of using racial data to draw district maps is that the legislature would be vulnerable to charges that race played a predominant role in drawing those districts. In Cooper v. Harris (2017), the United States Supreme Court overturned North Carolina’s 1st and 12th congressional districts. The opinion, written by Justice Elena Kagan, charged that “racial considerations predominated in designing both [congressional] District 1 and District 12” and that “Section 2 of the VRA gave North Carolina no good reason to reshuffle voters because of their race” (page 34).
Once racial data are introduced into the redistricting process, legislators will not be able to unsee the data they have seen and will be vulnerable to charges that racial considerations predominated in drawing districts.
There is another approach to drawing VRA-compliant maps suggested in Gingles, however.
Rather than focusing on building sufficiently large groupings of minority voters by using racial data to draw districts, legislators can focus on drawing geographically compact districts. Doing so would result in districts in which minority voters have an opportunity to elect representatives of their choice in those areas in which the minority population is sufficiently large enough to be either an electoral majority or part of one.
This idea is not new. Rep. Destin Hall, chair of the North Carolina House Redistricting Committee, said that not using racial data was the “best path forward” since courts have already approved maps that were made without those data.
So, banning the use of racial data in the redistricting criteria adopted by the General Assembly was the right call for complying with the VRA by assuring that race does not play a predominant role in drawing any districts. Other criteria adopted by the General Assembly will further afford racial minorities opportunities to elect representatives of their choice. Those criteria include keeping municipalities intact where practical and considering communities of interest. Both have some correlation with racial settlement patterns without making race a predominant factor in redistricting.
In other words, to paraphrase Chief Justice John Roberts, the way to stop the drawing of districts predominantly based on race is not to draw districts predominantly based on race. The only way to make sure you don’t do that is not to use racial data to draw districts.