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Voting Rights Back at the Supreme Court: The Big Racial Gerrymandering Cases You Haven’t Heard Of

December 1, 2016

A key chapter in North Carolina’s long running attack on one of our Constitution’s most cherished principles—equal political opportunity for all regardless of race—comes to the Supreme Court next week. The pair of redistricting cases the Justices will hear (one from North Carolina, one from Virginia), which have gone largely unnoticed, will be an important test for the Roberts Court. In deciding these cases, it will be critical that the Court ensure that states respect the Constitution’s promise of equal opportunity for all, reflected in the Fourteenth and Fifteenth Amendments, and the Voting Rights Act.

Over the last five years, North Carolina has repeatedly acted to violate the Constitution’s fundamental principles of voting rights and political equality that undergird our democracy. In the wake of the Supreme Court’s decision in Shelby County v. Holder gutting a key part of the Voting Rights Act, the North Carolina legislature enacted what the Fourth Circuit called “the most restrictive voting legislation seen in North Carolina since the enactment of the Voting Rights Act of 1965,” “target[ing] African Americans with almost surgical precision.” The Fourth Circuit’s decision in N.C. State Conference of the NAACP v. McCrory, handed down last July, invalidated the state legislature’s effort to cut back on early voting, but a number of local election boards eliminated key early voting hours anyway, a result that may have been responsible for the depressed African American turnout during the 2016 election. In addition to these restrictions on access to the ballot, the North Carolina legislature has sought to pack African Americans into state and congressional districts, lessening their influence elsewhere through blatant racial gerrymanders.

On December 5, the Supreme Court will consider the constitutionality of North Carolina’s Congressional Districts 1 and 12, two huge sprawling districts whose bizarre shapes were dictated by racial considerations. In addition to that case, McCrory v. Harris, the Court will also be hearing a companion case out of Virginia, Bethune-Hill v. Virginia Board of Elections. In both cases, state legislatures sought to pack racial minorities into a handful of districts, using fixed racial quotas which produced badly misshapen districts. And in both cases, the states claim “the Voting Rights Act made me do it,” based on a cartoonish version of the Voting Rights Act’s guarantee of equal political opportunity.

The facts of McCrory illustrate what is at stake. In 2011, the North Carolina legislature turned Congressional Districts 1 and 12 into majority-minority districts, ignoring that in these districts, African Americans had previously been successful in electing candidates of their choice by forming coalitions with like-minded white voters. The resulting districts cannot be squared with the Fourteenth and Fifteenth Amendment’s guarantees of equality. The legislature used race for the predominant purpose of packing African Americans into certain districts, thereby curbing their influence elsewhere. And because African Americans in those districts had previously acted with white voters, in line with the promise of the Fourteenth and Fifteenth Amendments, to elect candidates of their choice, the Voting Rights Act plainly did not compel the redistricting. States may not use a racial quota to pack racial minorities into certain districts under the guise of Voting Rights Act compliance.

In striking down North Carolina’s omnibus voter suppression law, the Fourth Circuit observed that a political party holding a majority of seats in the legislature may not “entrench itself . . . by targeting voters who, based on race, were unlikely to vote for the majority party,” making clear that efforts to seek partisan gain “cannot be accepted where politics as usual translates into race-based discrimination.” The same principle condemns North Carolina’s racial gerrymanders. In drawing Congressional Districts 1 and 12, race predominated over traditional districting criteria, producing monstrously misshapen districts whose lines can only be explained by the legislature’s desire to pack African Americans into those districts. The history of past and continuing racial discrimination in North Carolina—from 2011 until today—paints a powerful picture of how North Carolina has sought to marginalize African American voters, whether by making it harder for them to vote or by packing them into districts. 

The Justices need not break new ground to invalidate the racial gerrymanders in McCrory and Bethune-Hill. It need only apply its past cases, which make clear that the Constitution does not tolerate racial discrimination in the drawing of district lines. Two years ago, in a case involving a racial gerrymander enacted by the Alabama legislature, the Court made clear that the Voting Rights Act requires “tak[ing] account of all significant circumstances,” not “mechanically rely[ing] on numerical percentages,” as the North Carolina and Virginia legislatures did. States may draw majority-minority districts to help realize the promise of equality contained in the Fourteenth and Fifteenth Amendments, but they must do so based on hard evidence, not on racial quotas. Upholding that principle would be an important victory not only for those challenging these district lines, but also for our Constitution’s promise of equal political opportunity for all.

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This piece is cross-posted at Balkinization.

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