Gerrymandering and the Map to Durable Political Power (Part 3)
Posted on January 27, 2017
This is part 3 of my gerrymandering series. I recommend you take a look at the first and second posts if you aren’t already familiar with voting rights law, which, by-the-way, is 90% of humans. (here and here)
The 2010 redistricting cycle resulted in several lawsuits arising out of North Carolina’s voting district maps. Two of the cases, Harris v. McCrory (also called McCrory v. Harris for reasons having to do with appeals) and Covington v. North Carolina have worked their way up through the federal courts in North Carolina. Harris is ripe for decision from the Supreme Court of the United States (“SCOTUS”). SCOTUS has not yet decided whether it will hear Convington, but a petition asking it to do so is pending.
Harris v. McCrory— A Challenge to North Carolina’s U.S. Congressional Districts
In October 2013, a group of North Carolina voters, led by Plaintiff Harris, challenged North Carolina’s 2011 congressional map in the U.S. District Court for the Middle District of North Carolina. The voters alleged the GOP-controlled North Carolina General Assembly (“NCGA”) packed African-American voters into two US Congressional districts for unconstitutional reasons of race and partisanship.
North Carolina’s US Congressional Districts 1 and 12 (“CD1 and CD12, respectively) are considered in the Harris case. Both districts had a large percentage of African-American voters, or in election law terminology, a large Black Voting Age Population (“BVAP”) percentage.
Prior to the 2010 redistricting, the winning candidates in CD1 and CD12 had the support of African-American voters with margins of victory no lower than 59% (CD1) and 56% (CD12). African Americans were able to elect the candidate of their choice in both districts, meaning there was not a problem to “remedy” by increasing the BVAP of the districts. Nevertheless, the NC legislature ignored this election history when drawing the district maps and raised the BVAP in CD1 from 47.7% to 52.65%. CD12 went from 43.77% BVAP to 50.66% BVAP.
The surrounding congressional districts were now predominantly white. As discussed in a previous post, the increase of African-American voters packed in CD1 and CD12 meant that coalitions of African American and white voters were split, with progressive whites vastly outnumbered by conservative-voting whites in the surrounding districts.
As a result, congressional races in these “bleached” districts were less competitive. In 2012, for example, African-American candidates of choice won with 75% and 80% of the vote in CDs 1 and 12. This “wastes” 25 to 30% of the African-American vote by creating such large margins of victory.
The Harris voters argued that the GOP-led legislature sorted thousands of voters into oddly shaped voting districts using a racial threshold that was not justified by evidence. Again, African-Americans were already electing candidates of their choice in districts that were far less than 51% black.
The case, filed in October 2013, was heard by a three-judge panel (Judges Roger Gregory (GWB appointment), Max Cogburn, Jr. (BHO appointment) and William Osteen, Jr. (Chief Judge and GWB appointment), which, in February 2016, found that racial considerations predominantly motivated the drawing of both challenged districts, and struck down the maps. Judge Gregory, writing the opinion of the Court, stated that “the individuals in CD 1 and CD 12 whose constitutional rights have been injured by improper racial gerrymandering and suffered significant harm.” The Court then ordered the NCGA to redraw those districts. The NCGA redrew the maps and approved new congressional boundaries, although the plaintiffs here and elsewhere have alleged that the new map created an impermissible partisan gerrymander.
Importantly, the three judge panel in Harris declined to rule on the question of whether the map was overly partisan. Judge Cogburn wrote:
“It is left to the people of the state to decide whether they wish to select their representatives or have their representatives select them.”
In point of fact, I believe that the North Carolina voters would like a chance to have independent redistricting, however; what Judge Cogburn fails to recognize is such a law is unlikely to be proposed in a veto-proof GOP NCGA because the districts are so gerrymandered as to practically assure most GOP officials re-election. If the courts don’t step in, North Carolinians will not get a say in who elects their representatives and the representatives will continue to select the voters.
Nonpartisan think tanks agree. In fact, many filed briefs with SCOTUS arguing that the Court must consider and rule upon overly partisan gerrymandering. One such amicus curaie is The Brennan Center for Justice at NYU School of Law, a nonpartisan, nonprofit and public interest law institute that “seeks to improve systems of democracy and justice.” The Brennan Center strongly supports independent redistricting so that those in power cannot rig the system in their favor.
The Brennan Center asked the Court to remand the case back down so that the lower court judges could examine the facts with respect to the issue of partisan gerrymandering. In Harris, the Brennan Center requests that SCOTUS take jurisdiction over the political question of just how much partisan gerrymandering is too much partisan gerrymandering. Their brief to the Court is of interest, and can be found here.
It Ain’t “Me” but “We”
An important but nuanced issue in all Voting Rights Act (“VRA”) cases is the idea of voting coalitions. For example, in the South and the Rust Belt, African-Americans, Latinos, Middle Easterners (in the Rust Belt) and white liberals tend to form coalitions to elect more progressive representatives. One of the more famous coalitions is what political scientists call the “Obama coalition.”
Specifically this refers to strong support for former President Obama among African-Americans, Latinos, college-educated woman and independents. One might say that racial bloc voting was a necessary but not sufficient condition of President Obama’s victories. Obama could not have won with just African-American voters, but he could not have won without them either.
Cramming African-American voters into large majority-minority districts has the net effect of reducing the number of Democrats elected, which, of course, is exactly what GOP map drawers intend. It does provide, however, an opportunity for one or two more African-American legislators to be elected to represent black voters, which is no small thing in terms of reducing structural biases. As a practical matter, however, in our current political environment, African-American legislators have a very difficult time advocating effectively for their African-American constituents in GOP dominated legislatures. Thus, at least in the near term, coalitions matter when we discuss ensuring meaningful minority representation in our legislatures, the primary purpose of the VRA.
The SCOTUS Argument
I read the transcript in Harris. Hagan and Breyer variously held forth on the history of the VRA, causing Justices Roberts and Alito to chime in in retort. The Court spoke almost as much as the attorneys.
Various legal scholars have read the transcript as portending a muddled path forward. It may be the case that instead of focusing on the percentage BVAP in a district that the Court instructs legislatures to focus on population shift targets—thus redistricting would consider differences in the geographic distribution of voters between censuses. If this is the way the Court tries to thread the needle, it does not resolve the tension between the VRA and Equal Protection. How does a legislature increase or decrease BVAP without increasing or decreasing the BVAP in a district? We’re back to focusing more on race than anything else.
SCOTUS has had only eight justices since Justice Scalia’s death in 2016. The Court could decide to hold off on a ruling until President Trump nominates a justice to fill Scalia’s seat. If this is the case, we are not likely to have a ruling in Harris until late spring or early summer. In the next post, we will look at how the Harris case may or may not impact the Covington case, which invalidated several state legislative districts. The combination of these decisions may well determine whether North Carolina voters have special elections in 2017 and in which districts North Carolina voters will vote in 2018.
In any event, the rights of North Carolina voters are in the hands of SCOTUS for some time to come.