The U.S. Supreme Court ruled 5–3 this morning
that the congressional districts the North Carolina legislature enacted in 2011 and had in place for the 2012 and 2014 elections constituted an unconstitutionally racist gerrymander, upholding a previous district court ruling and siding with Governor Cooper over the Republican legislature.
Justice Elena Kagan delivered the court opinion, the latest in a series of rulings Kagan has written on racial gerrymandering and its impact on minority populations. She invoked the Equal Protection Clause of the Fourteenth Amendment, which forbids states from “separating its citizens into different voting districts on the basis of race” without “sufficient cause.” In affirming the lower-court ruling, Kagan held that the 2011 maps were designed to dilute the power of minority votes by packing African American voters into Districts 1 and 12.
The 2011 maps resulted in ten of thirteen districts being represented by Republicans. After the federal district court ruled them unconstitutional last February
—just a month before the scheduled congressional primaries, which were rescheduled for June—legislators scrambled to quickly redraw the maps in a manner that both maintained the GOP supermajority while obtaining the court’s approval. Those new maps are currently the subject of another lawsuit over whether it’s constitutional to gerrymander for partisan rather than racial reasons; a federal court hearing in that case is scheduled for June
. In addition, the state’s legislative maps are also the subject of court battle over allegations of racial gerrymandering
The N.C. Republican Party blasted the decision. “Our position continues to be the same as the Obama Justice Department on this issue, which pre-cleared these districts as fair and legal,” said chairman Robin Hayes in a statement. “I don't know how any legislature can perform this task when the rules change constantly from case to case, often after the fact. … The courts have put legislatures in an impossible situation, with their constantly changing standards. It is also important to note that this ruling does not impact our current congressional map, which we also believe is fair and legal."
North Carolina Democrats, meanwhile, were quick to praise the court’s decision and condemn GOP leaders: “The 2011 redistricting was an extreme case of racial gerrymandering, and I applaud the U.S. Supreme Court’s decision in affirming the District Court’s decision,” said U.S. Representative G.K. Butterfield in a statement.
Added Cooper: “North Carolina voters deserve a level playing field and fair elections, and I’m glad the Supreme Court agrees. The North Carolina Republican legislature tried to rig Congressional elections by drawing unconstitutional districts that discriminated against African Americans and that’s wrong.”
The most immediate question is what bearing this decision will have on the case involving legislative districts. In November, a federal court ordered the legislature to draw new districts and hold new elections in 2017; earlier this year, the Supreme Court stayed that order. It’s worth noting that much the same process went into the 2011 congressional districts that went into the legislative districts, however, so with one having fallen, it’s not hard to imagine going away, too.
In the bigger picture, writes Richard L. Hasen, a political scientist at the University of California, Irvine
, and election law expert, “This decision by Justice Kagan is a major victory for voting rights plaintiffs, who have succeeded in turning the racial gerrymandering cause of action into an effective tool to go after partisan gerrymanders in Southern states.”
Hasen continues: “Holy cow this is a big deal. [Kagan’s opinion] means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting. This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts.”
In other words, partisanship and race might not be so disconnected. Which means it’s North Carolina’s new congressional districts—an effort at a partisan, not racial, gerrymander—may not withstand the court’s scrutiny either.
Chief Justice John Roberts, Justice Anthony Kennedy, and Justice Samuel Alito all dissented in part from the ruling. Kagan was joined by the court’s liberal bloc—Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor—as well as, remarkably enough, stalwart conservative Clarence Thomas. New justice Neil Gorsuch did not take part in the deliberations.
*Additional reporting by Sheldon Koppenhofer and Lydia McInnes.