On Monday, the State of North Carolina suffered yet another loss in a voting rights case. In Cooper v. Harris, the U.S. Supreme Court upheld a federal district court’s finding that the state’s reconfiguration of Congressional Districts 1 and 12 after the 2010 census violated the equal protection clause of the 14th Amendment.
This is not the first time that the Supreme Court examined these two districts. In 1993, in Shaw v. Reno, the Court put in place the current doctrine that is supposed to govern racial gerrymandering. The Court held that racial gerrymandering is only permissible when it is narrowly tailored to serve a compelling governmental interest; that eradicating the effects of past racial discrimination constitutes one such compelling governmental interest; and that complying with the Section 2 of the Voting Rights Act constitutes another.
Whatever the Court might have hoped, that doctrine has failed to provide anything like a workable guideline for those who engage in redistricting, and, as a result, in the years since Shaw v. Reno was decided the Court has had several additional occasions to look at North Carolina’s Congressional Districts, and specifically at District 12. (See, e.g., Shaw v. Hunt, Hunt v. Cromartie, and Easley v. Cromartie.)
The decision that the Court handed down on Monday will do nothing to improve matters. The Court began by announcing that:
A district court’s assessment of a districting plan … warrants significant deference on appeal to this Court. We of course retain full power to correct a court’s errors of law …. But the court’s findings of fact—most notably, as to whether racial considerations predominated in drawing district lines—are subject to review only for clear error.
Applying this “clear error” standard, the Court was unanimous in allowing the US District Court for the Middle District of North Carolina finding of impermissible racial gerrymandering to stand with respect to District 1. However, there was a diversity of opinions regarding District Court’s finding with respect to District 12.
In Easley v. Cromartie, the last of the cases listed above, the Court appeared to have laid down something like a clear rule for deciding racial gerrymandering cases:
[W]here majority-minority districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance.
On Monday, however, the majority ruled for the parties attacking the legislatively drawn boundaries of District 12 despite that fact that those parties had failed to make the required showing. A dissent written by Justice Alito and joined by Chief Justice Roberts and Justice Kennedy suggested that the District Court’s failure to a apply the Cromartie rule constituted plain error.
Much has been made of the fact that Justice Thomas failed to join the other conservative justices on this issue, but it shouldn’t have come as a surprise. In a dissent in Easley v. Cromartie, Thomas rejected the idea of making an exception to the plain error standard on the basis of a rule like the one proposed by the Cromartie majority. In a terse concurrence in Cooper v. Harris, Thomas refers to his previously stated position on this issue and adds:
In my view, Section 2 [of the Voting Rights Act] does not apply to redistricting cases and therefore cannot justify a racial gerrymander.
This is a radical solution to the problem of determining whether a given instance of racial gerrymandering is justified, but, in my opinion, it’s the right solution. As I said when I reviewed the District Court’s decision in Harris, North Carolina’s experience with redistricting makes two things “abundantly clear”:
First, it’s time to put an end to racial gerrymandering. It’s wrong in principle, and it can no longer be justified as a practical necessity. … Federal voting rights law simultaneously requires and forbids redistricting based on race, and it uses an incredibly abstruse and subjective series of tests to determine whether any particular instance of racial gerrymandering succeeds in doing what is required while avoiding what is forbidden. Moreover, as these cases show, racial gerrymandering is no longer about race; it’s about politics. Why are the parties involved in this dispute interested in how black voters are apportioned among the various legislative districts? It’s not because those voters are black. It’s because those voters almost always vote for Democrats. The Republicans want to apportion them in a way that minimizes the number of Democratic majority districts, and the Democrats want the opposite. …
It’s also time to put an end to political gerrymandering. … We should institute non-partisan redistricting procedures that enable us to choose our representatives rather than the other way round. Other states have done it. We can too.