Symposium: A recipe for continued confusion and more judicial involvement in redistricting

Andrew Brasher is the solicitor general of Alabama.

I think the most important aspect of Cooper v. Harris is not the Supreme Court’s unanimous decision on North Carolina’s Congressional District 1, but its divided decision on Congressional District 12. Alabama Democratic Conference v. Alabama left open two questions that Cooper and an earlier case from this term, Bethune-Hill v. Virginia State Board of Elections, try to answer: (1) How does a court go about deciding whether a state drew an individual district predominantly on the basis of race such that strict scrutiny applies? (2) When race predominates and strict scrutiny applies, how does a court evaluate whether the Voting Rights Act justifies the decision to consider race?

The court’s answer in Bethune-Hill and Cooper is that there is a low bar for plaintiffs to show racial predominance, but an even lower bar for surviving strict scrutiny. In other words, it may be relatively easy to get to strict scrutiny, but the scrutiny is not all that strict.

In Cooper, North Carolina’s defense of CD 1 was all about question 2. North Carolina essentially admitted that CD 1 was based on race but argued that it reasonably increased the black population in the district to ensure that black voters had an equal opportunity to elect a candidate of their choice. The problem with that reasoning – as the court unanimously concluded – was that black voters had already been electing their candidate of choice in CD 1. Because North Carolina conducted “no meaningful legislative inquiry” into the politics of CD 1, it had no good reason to think that it should increase the black population percentage to satisfy the Voting Rights Act. A state cannot satisfy strict scrutiny, the court concluded, based on “no evidence.”

North Carolina’s defense of CD 12, on the other hand, was all about question 1. The redistricters argued that this district was based on politics, not race. They pointed to statements by legislative leaders and others that the point of CD 12 was to pack democratic voters into CD 12 so they could not influence elections in the surrounding districts. Race, they claimed, was only relevant to the extent that black voters mostly support Democratic candidates. The lower court rejected this argument. Even though the plaintiffs could not produce a more racially balanced plan with a similar partisan balance, the lower court found that race, not partisanship, predominated in drawing the district’s lines.

In affirming the lower court’s rejection of the redistricters’ partisan explanation for CD 12, the Supreme Court followed its decision in Bethune-Hill, which likewise lowered the bar for plaintiffs to show that race predominates in a district. This glide path to strict scrutiny is contrary to the way the court evaluated racial gerrymandering claims when it created the cause of action in the 1990s. In Shaw v. Reno and follow-on cases, the court suggested that it would be the rare case in which race predominated and strict scrutiny applied. Now, the court is suggesting that any serious consideration of race in the redistricting process may be enough for a lower court to find that race predominated in a district.

This result is important for three reasons.

First, the court’s decisions in Bethune-Hill and Cooper give lower courts very little guidance, and an enormous amount of discretion, in determining whether a particular district is based predominantly on race. In Bethune-Hill, the court rejected the notion that race can predominate only when a district conflicts with non-racial traditional districting criteria, such as compactness. But the court held that compliance with traditional districting criteria was still something a lower court could consider. Similarly, in Cooper, the court held that a court may find racial predominance even if the plaintiffs cannot propose a competing plan that provides greater racial balance. But, again, the court held that this evidence – or lack of evidence – was something a lower court could consider. The unfortunate upshot of Cooper and Bethune-Hill is that, even after all the court’s redistricting cases in this cycle, redistricters and lower courts still lack bright-line rules to follow going forward.

Second, in rejecting the competing-plan test, the court rejected one of the best ways to distinguish districting plans that warrant judicial intervention from those that do not. The court frequently recognizes that politics and race are related. And running throughout the court’s redistricting jurisprudence is the concern that courts should be hesitant to interfere in partisan and other kinds of political disputes. In Easley v. Cromartie, known as Cromartie II, the court found a way to differentiate partisanship from race. It reasoned that “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,” which “would have brought about significantly greater racial balance.”

The requirement that a plaintiff propose a competing plan that meets the redistricter’s “political objectives” helps courts avoid disputes that are essentially political in nature. If the plaintiffs’ alternative plan meets the redistricters’ political objectives but provides greater racial balance, then a court knows that race is really at issue. It can adjudicate the gerrymandering claim without altering a legislative body’s partisan makeup or upsetting a redistricter’s political objectives. But if the plaintiff cannot come up with an alternative plan that satisfies a redistricter’s political objectives, a court can be confident that the dispute is ultimately about politics and partisanship, not race. The Supreme Court’s decision to minimize Cromartie II’s alternative plan requirement will make it much harder for courts to avoid being entangled in political disputes.

Third, the court’s ruling on CD 12 is important because the court’s view of racial predominance is just as likely to disrupt a gerrymander that favors Democrats as one that favors Republicans. One strategy of a Democratic-leaning redistricter is to create majority-white “crossover” or “influence” districts in which a substantial minority of black voters can combine with Democratic-leaning white voters to elect a Democratic candidate. Bethune-Hill and Cooper stand for the proposition that, to the extent race is a predominant consideration in the creation of such districts, they must also meet strict scrutiny. And because the court has held that such districts are not compelled under the Voting Rights Act, a redistricter’s consideration of race to create such districts necessarily fails to satisfy that standard. For this reason, although CD 12 was a crossover district in North Carolina’s previous districting plan, there is no guarantee that it will be such a district in any future plan. Instead, if a redistricter tries to recreate CD 12 as a crossover district by considering the racial composition of the electorate, that plan will run into the same legal problems as CD 12 did in the current plan.

In short, the court’s decision on CD 12 seems destined to lead to more judicial involvement in redistricting. I don’t know if this is good decision for voters, but it is definitely a good decision for redistricting lawyers.