State legislatures may not move more black voters into an election district to give them a majority if they already make alliances with white voters that allow them to get their preferred candidates elected, the Supreme Court ruled unanimously on Monday. The federal Voting Acts does not require a “racial gerrymander” of that kind, and the Constitution forbids it, the court declared in an important North Carolina congressional redistricting case.
The court split 5-to-3 in ruling separately in the same case that a state legislature will have a difficult time if it tries to justify an explicit reliance on race in creating a black-majority district by claiming that politics, not race, was its goal.
The new decision, in the case of Cooper v. Harris, continued the court’s years-long project of limiting the use of race as a key factor in drawing new maps for election districts at all levels of government.
North Carolina is a state where racial disputes have often arisen over redistricting and it has had to defend its plans several times in the Supreme Court – including fights over earlier maps for the very same districts that were at issue in Monday’s opinion – District 1, in the northeast part of the state, and District 12, in the south-central area.
At issue before the Justices this time were new maps drawn for those districts after the 2010 census. Each district has a core, but also has slender extensions that create an odd overall shape. Parts of those extensions brought more black voters into each district, giving them majorities.
In the new ruling, the court struck down both districts’ maps; the vote was unanimous on District 1 but 5-to-3 on District 12. The three dissenters’ main protest was how the majority had treated a 2001 decision that had upheld an earlier map, with much the same shape, for District 12. (Justice Neil M. Gorsuch, the new member of the court, did not participate in either part of the decision.)
The court has issued a rising number of decisions in recent years seeking to clarify just when race is a legitimate factor in deciding how to draw lines that either include or exclude voters by race. In a state where white voters tend to support Republican candidates and black voters tend to support Democratic candidates, it is sometimes a puzzle to determine whether lines were drawn along party lines or along racial lines. The part of Monday’s decision that split the court, on District 12, marked a new attempt to guide lower-court judges on how to tell the difference.
The majority said that, when a trial court has concluded that shifting black voters into a district to give them a majority was done for racial rather than political reasons, the Supreme Court will uphold that result if it is found to be a “plausible” interpretation of evidence at the trial. The dissenters said those who claim a racial gerrymander can win on that point, when a state insists it drew the maps as it did for political reasons, only if the challengers come up with an alternative map showing that the same political objective could be achieved with less reliance on race.
The unanimous ruling dealing with District 1 marked another attempt by the court to clarify how much leeway state legislatures have to create new districts that will have a majority of black voters. The state legislature, acting on a belief that the federal Voting Rights Act required that a district have at least 50-plus percent of black voters in order to ensure that they could elect their preferred candidates, set that as a hard-and-fast rule.
In District 1, blacks previously did not have a majority, but they still had been able to get white voters in sufficient numbers to help them elect candidates that the black voters preferred. That is what is called a “crossover” district.
When such a district exists, the court declared, drawing lines to include more blacks and give them a majority is a form of “racial gerrymandering.” It misreads the Voting Rights Act to claim that it requires that use of race, the court said. It added that this is the kind of “racial gerrymandering” that the Constitution itself forbids.
The main opinion was written by Justice Elena Kagan, and was joined in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Clarence Thomas. Justice Thomas also filed a brief concurring opinion. The part of the opinion dealing with District 1 also had the support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Anthony M. Kennedy/
Justice Alito, Jr., wrote the dissenting opinion on the District 12 issue, joined by the Chief Justice and Justice Kennedy.
The court issued another ruling on Monday affecting voting rights. For the second time in recent years, it upheld – without briefs or a hearing either time – a federal ban on so-called “soft money.” That is campaign cash that is raised outside of the contribution and spending limits in federal law, and is used by state and local political parties to pay for such federal election activity as get-out-the-vote campaigns, voter identification and registration, and other efforts not directly involved in promoting or opposing political candidates.
Seven years ago, the Supreme Court summarily rejected a constitutional challenge to that provision, over the dissents of three Justices who wanted the court to hold a full-scale review of the ban before ruling on its validity. That challenge had been brought by the Republican National Committee.
On Monday, the court used the same swift technique to turn away a new constitutional challenge to the ban, this time by the Republican Party of Louisiana. Justice Clarence Thomas and Justice Gorsuch dissented, saying that the court should deal with the ban only after undertaking a full, regular review. This marked the first time that Justice Gorsuch has cast a vote as a member of the court on a campaign finance or voting rights issue.
(NOTE: This post also appeared today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)
