Chris Elmendorf
The tectonic plates of redistricting constabulary are starting to slide—and quickly. Earlier this year, a three-judge district courtroom struck downward Wisconsin’s nation legislative map every bit an unconstitutional partisan gerrymander, the start such asset past times whatever federal courtroom inwards to a greater extent than than a generation. Federal courts inwards Maryland in addition to North Carolina receive got also issued supportive rulings inwards electrical current partisan gerrymandering cases, allowing the plaintiffs' claims to maintain to trial.
Meanwhile, yesterday’s Supreme Court determination in Cooper v. Harris, the North Carolina racial gerrymandering case, augurs a major recontouring of the redistricting landscape every bit the Equal Protection plate comes crashing into the Voting Rights Act (VRA) plate. Section 2 of the VRA has long been understood to require the drawing of electoral districts inwards which racial minorities tin sack elect their “candidates of choice” inwards locales where white in addition to minority voters receive got real dissimilar political preferences. Yet since the 1990s, the equal protection clause has required strict scrutiny of whatever district inwards whose pattern race was the “predominant factor.” The Constitution disfavors the intentional sorting of voters amid districts on the footing of their race. Until recently, however, it was widely idea that the “predominant factor” examination for racial sorting / equal protection claims would hold out met entirely every bit to districts inwards which both (1) minority citizens contain a bulk of the voting-age population, in addition to (2) the district’s boundaries are wildly incongruent with “traditional districting principles,” such every bit compactness in addition to honour for local authorities boundaries.
But inwards Bethune Hill v. Virginia, decided 2 months ago, the Supreme Court clarified that the “predominant factor” examination is satisfied whenever race was the overriding argue for moving a grouping of voters into or out of a district, irrespective of the district’s apparent conformity to traditional criteria. Then, inwards the unanimous percentage of Cooper v. Harris, the Court applied strict scrutiny to a district because the nation had “purposefully established a racial target” for its composition, in addition to selectively moved heavily dark precincts into the district to compass that target. In the Republican redistricting excogitation at number in Cooper, the target was 50% black. In a Democratic gerrymander of North Carolina, the target would likely hold out smaller, perchance 40% black, to to a greater extent than efficiently distribute reliable dark Democratic voters spell continuing to enable the election of around dark candidates. But the actual threshold (50% vs. 40%) seems legally irrelevant.
How in addition to therefore is a nation to comply with Section 2 of the Voting Rights Act, which, every bit noted above, has long required states to do districts with plenty minority voters (a "racial target") to consistently elect minority “candidates of choice.” One unhappy possibility is that the Court volition simply undertake to complimentary redistricters from the latter obligation, asset Section 2 unconstitutional or narrowing it beyond recognition on the footing of an asserted conflict with the anti-sorting equal protection principle.
Another possibility is that federal courts volition require redistricters to follow a path established past times Alaska's Supreme Court every bit a affair of nation constitutional law. In Alaska, the nation must start redistrict blind to race, in addition to therefore evaluate the resulting map for compliance with Section 2, in addition to and therefore brand whatever minimal (?) changes are necessary forbid a Section 2 violation. Cooper v. Harris hints at this approach. Striking downward District 1, the Court explained: "North Carolina tin sack signal to no meaningful legislative enquiry into what it at in ane trial rightly identifies every bit the telephone substitution issue: whether a new, enlarged District 1 [enlarged to comply with ane person, ane vote], created without a focus on race but nevertheless else the State would choose, could Pb to § 2 liability.”
Insofar every bit today’s determination in Cooper advances the Alaska framework, the 1000000 dollar enquiry volition hold out how a nation redistricting potency must assess its initial race-blind map for compliance with Section 2. Here the constabulary could evolve inwards whatever number of directions, but given the Supreme Court’s aversion to racial targets, the Court may good allow states to count for Section 2 compliance purposes whatever district inwards which minority voters are probable to wield around influence (say, whatever district with a Democratic majority, or whatever district inwards which Democrats would lose their working bulk if no minority voters went to the polls). This would stand upward for a dramatic modify inwards the constabulary of Section 2, since until at in ane trial nearly all courts receive got focused on the enquiry of whether districts enable the election of authentic candidates of choice of the minority community, rather than minimally acceptable (and normally white) Democrats.
Of course, all of this is somewhat speculative. Writing at SCOTUSblog, Kristen Clarke in addition to Ezra Rosenberg fighting that Cooper and Bethune Hill, read together, require plaintiffs bringing a racial sorting / equal protection claim to exhibit (as the trigger for strict scrutiny) quite a chip to a greater extent than than the being of a theatre racial-composition target addition the displace of voters to achieve the target. I’m non convinced, but for now, there’s plenty looseness in the doctrine for lower courts to larn either means on this question.
What is clear is that the Supreme Court, unhappy virtually racial sorting, is on guard against pretextual justifications for the practice. As Justice Kennedy for the Court remarked inwards Bethune Hill, “Traditional redistricting principles . . . are numerous in addition to malleable . . . . By deploying those factors inwards diverse combinations in addition to permutations, a State could build a plethora of potential maps that await consistent with traditional, race-neutral principles. But if race for its ain sake is the overriding argue for choosing ane map over others, race silent may predominate.”
Going forward, any redistricters who undertake to depict districts with a racial-composition target (majority-minority or otherwise) would do good to denote that the target is exactly ane objective to hold out considered in addition to balanced amongst many others, rather than a categorical command. The crossing of fingers is also recommended.
Christopher S. Elmendorf is Martin Luther King, Jr. Professor of Law at UC Davis School of Law. You tin sack hand him past times email at cselmendorf at ucdavis.edu
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