SCOTUS to NC: There is Rat F**ked and then, there is North Carolina.
Posted on May 23, 2017
Writing this piece feels like talking during a no-hitter. I’m not generally superstitious, but the past few days of Supreme Court voting rights cases makes me nervous. This war-weary voting rights advocate is not accustomed to so much good news in a such a short time, especially not from SCOTUS, an institution known for crafting law at a pace akin to stalagmite formation.
Last week, SCOTUS declined to hear the North Carolina “voter ID” law, letting stand a court of appeals opinion finding unconstitutional, intentional race discrimination by the North Carolina General Assembly (again). I wrote about the impact of that decision here. Yesterday (knocking on wood and tossing salt every which way), SCOTUS, in a 5-3 decision, affirmed a lower court decision holding that two of North Carolina’s congressional districts–CD 1 and CD 12–were unconstitutional racial gerrymanders. For a refresher on gerrymandering law read here, here and here. For a detailed history of gerrymandering in U.S. politics, check out Rat F**cked: The True Story Behind the Secret Plan to Steal America’s Democracy.
In the last twenty-four hours so much excellent legal analysis has been written about Cooper v. Harris (“Cooper“), it would be foolish for me to think I can add much of substance. The most concise, non-lawyer friendly explanation of the case was written by election law scholar, Rick Hansen in the Washington Post. He wrote:
Sometimes the most important stuff in Supreme Court opinions is hidden in the footnotes. In Monday’s Supreme Court ruling striking down two North Carolina congressional districts as unconstitutionally influenced by race, the majority buried a doozy, a potentially powerful new tool to attack voting rights violations in the South and elsewhere….
This seems to be a much more realistic approach to the interrelated matters of race and party than the court’s earlier treatment of them as either-or propositions for purposes of assessing the legality of gerrymandering. Indeed, political scientists refer to places such as North Carolina as states with “conjoined polarization,” where racial and partisan categories overlap. In North Carolina, about 90 percent of black voters are Democrats; conversely, the overwhelming majority of whites are Republicans. When the Republican legislature passes a plan to limit Democratic voting power, it necessarily affects black voters.
Under this logic, legislators will no longer be able to hide behind claims of partisan motivation to protect themselves from racial gerrymandering claims. Kagan’s approach should allow voting rights plaintiffs to bring more successful racial gerrymandering claims.
And this approach has broader application — especially important given the Supreme Court’s landmark 2013 decision overturning key portions of the Voting Rights Act that had required states such as North Carolina to get federal approval before making new voting rules that could hurt minority voters: Last week, the Supreme Court declined to review a North Carolina case involving voter identification and other strict voting laws. The U.S. Court of Appeals for the 4th Circuit had also treated race and party as proxies for one another and said that a partisan-driven voting law also constituted intentional race discrimination.
Hansen’s view is optimistic, and I hope correct. Other election lawyers are more circumspect. You can find several scholars writing about the Cooper case on Hansen’s Election Law Blog here.
My takeaways from the Cooper case have to do, in part, with who decided it. Justice Kagan authored the majority opinion, which was written in her familiar, almost cozy style. She was joined by Justices Ginsberg, Sotomayor and Breyer. A conservative stalwart, Justice Clarence Thomas, concurred, casting the 5th vote. If you had offered me 100:1 odds on Thomas finding an unconstitutional racial gerrymander I would have told you the odds were way higher than that against it. But then again, it has been a really weird few months. Justices Alito, Kennedy and Roberts dissented. Justice Gorsuch did not participate because he had not been appointed at the time the case was argued. Thomas’s vote signals to me that the Court believed the gerrymander in this case to have been an obviously intentional effort to draw lines based on race. In other words, to get Thomas to vote with the liberals, he had to think the discrimination was pretty damn obvious.
The Cooper take aways for North Carolinians are these:
- The NCGA has already redrawn the congressional maps, anticipating this decision. There are two cases pending in the courts presently, Harris v. McCrory and Common Cause v. Ruchio, challenging the newly drawn maps. Regardless of the outcome of those additional cases, NC 1 and NC 12 will look different for the 2018 elections.
- You might be asking yourself, given that Democrats hold NC 1 and NC 12, why liberals are getting their panties in a twist about these districts. The answer has to do with math. NCGA stuffed more African Americans into those districts to dilute the number of left-leaning folks in other districts. Stuffing left leaning voters into Democratic districts makes the GOP districts less competitive. District “packing” makes it easier for Republicans to hold more seats and for the Democrats to win majority-minority districts by a wider margin.
- A big question is what the Cooper case signals with respect to the case pending before SCOTUS challenging the North Carolina General Assembly maps, Covington v. North Carolina. In Covington, a three-judge panel found North Carolina’s State House and State Senate Districts unconstitutional because of racial gerrymandering. SCOTUS’s deference to the lower court finding of intentional race discrimination in the Cooper case increases the likelihood that the state maps will also be held unconstitutional.
- Finally, there are a handful of other cases winding their way through the North Carolina courts challenging both the existing and the re-drawn maps. The Cooper case is likely to figure prominently in the outcome of those cases.
When it is all said and done, North Carolina tax payers will have spent millions of dollars in legal fees challenging almost every map drawn by the GOP general assembly after then 2010 census. North Carolina voters will have to decide if this kind of partisan, racially discriminatory gamesmanship is something they want more of. If not, cleaning out the general assembly is the first step toward independent, common sense map drawing.
If you want your legislators to choose their voters, do nothing, keep the same gang in office. If you would actually like to choose your legislatures–you know, like a democracy–work to change up the makeup of the NCGA in 2018.