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Cooper v. Harris: Examining the Constitutionality of Redistricting in North Carolina

Cooper v. Harris: Examining the Constitutionality of Redistricting in North Carolina

By Jerry Thomeczek

Introduction

In May 2017, the Supreme Court ruled 5-3[1] that the redistricting of the 1st and 12th Districts in North Carolina violated the Equal Protection Clause of the Fourteenth Amendment.[2] These districts actually have a long legal history, with one of the districts’ legality being in argued in front of the Supreme Court for the fifth time.[3] In both instances, the North Carolina legislature redrew the districts so the black voting-age population (BVAP) would be over 50%. The Court held that this alignment violated the Fourteenth Amendment by creating a situation wherein the African-American vote would be concentrated in these two districts and thus diluted elsewhere. While this practice can sometimes be permissible, the Court found that those exceptions were not met in these instances. This case turned less on the Court’s opinion of the racial bias and more on issues of review. That is to say, the real determination was at the district court level and likely will remain to be so in the future.

This article will examine at how the Court came to its conclusion and what the ramifications are for redistricting after 2020’s census.

The Court's Rationale

The Court examined the two cases in order looking first at District 1 and then addressing District 12. District 1 was actually found to be unanimously unconstitutional. In this district, the BVAP was increased from 48% to 52.7%, making it a minority-majority district. Generally, the Fourteenth Amendment would prohibit the drawing of district lines based on race, but the Voting Rights Act of 1965 (“VRA”), namely § 2, created some situations where race could be a factor. These instances were permitted in order to prevent districts drawn in a way that would dilute the voting power of the minority group. Doing so would theoretically eliminate the possibility of the election of the preferred candidate of that minority group. In order to satisfy the third prong of the Gingles test,[4] it was necessary for the majority to be consistently voting in a way that would keep the minority-preferred candidate from being elected.

However, District 1 was a so-called crossover district wherein enough white voters would join the minority voters to elect that candidate preferred by the minority. This was vital to the District Court’s determination that the district boundaries were not drawn to comply with the VRA, and were therefore unconstitutional with regards to the Fourteenth Amendment. Because the District Court was tasked with making this factual determination, the standard of review for the Supreme Court was relatively high; the standard required a showing of clear error. That is to say the Supreme Court must uphold a plausible finding by the district court even if the Justices would have ruled otherwise had they been the triers of fact. North Carolina tried to argue that, because the issue had been settled at the state court level, the Court should adopt a stricter standard of review. However, the failure of that argument made it hard for the District Court’s finding to be overruled.

The Court also laid out the argument for District 1 being drawn to concentrate African Americans. The testimony provided by North Carolina state legislators, as well as the consultant hired to draw the map, indicated that the goal in creating a map with such irregular borders was to create a majority black district. Further, the way the map was drawn, specifically incorporating majority black neighborhoods while excluding nearby white neighborhoods, persuaded the District Court that the impetus for the placement of the borders was racial in nature. Overall, the Supreme Court unanimously held that the lower court’s ruling was plausible and therefore upheld the ruling.

North Carolina’s argument for the legality of District 12 similarly failed. Rather than arguing that the district was necessary to comply with § 2 of the VRA, North Carolina relied on § 5 of the VRA that prevented the retrogression of a minority group’s electoral position. Accordingly, the North Carolina legislature was explicit in its desire to create a minority-majority district, even though they attempted to defend the district’s borders by claiming that the redistricting was done strictly using political considerations. However, certain aspects, such as contradictory testimony and the exclusion of white Democrats, convinced the District Court that the borders were drawn with racial considerations.

Moving Forward

This ruling will be important when looking at redistricting after the 2020 census. Gerrymandering has been in the public eye recently as some citizens have been disappointed that, through gerrymandering, the House of Representatives does not properly represent the way the American people vote. For example, in 2016, the Republican Party won about 49.9% of the vote but received 55.2% of the seats.[1] Further, many people have been angry at voting laws that are intended to suppress minority voter turnout by creating restrictions that predominately affect lower income and minority voters. Gerrymandering is something that can frustrate both aspects, and it is not unreasonable to expect it to be addressed substantively before the 2020 redistricting.

There have been bipartisan pushes to end gerrymandering, both legal political gerrymandering and illegal racial gerrymandering. Recently, former California governor Arnold Schwarzenegger has led an effort to end gerrymandering. The holding in Cooper also makes the definition of racial gerrymandering more clear and could open up other states’ redistricting efforts to Fourteenth Amendment challenges.

Looking at Missouri specifically, ending gerrymandering could alter the drawing of districts particularly in the St. Louis area. At the moment, St. Louis is not gerrymandered to such an extent that a legal challenge would be warranted. However, the drawing of the districts is certainly done for political reasons. For example, Missouri’s First Congressional District is overwhelmingly Democratic, but its shape, as well as the shape of the Second and Third districts, ensure that those districts are safely Republican. In theory, a different drawing could conceivably flip the balance of the districts to majority Democrat, if not all three seats becoming Democrat. It is also important to note that racial gerrymandering can be beneficial to minority groups in that they are not splintered to the point of dilution. Certainly, the ruling in Cooper will lend support to the efforts to end gerrymandering, and lead to a close examination of the upcoming district maps.


Jerry Thomeczek*
Edited by Luke Jackson

Footnotes

[1] Justice Gorsuch did not vote as he was not yet appointed when the case was argued.

[2] Cooper v. Harris, 137 S.Ct. 1455, 1463 (2017).

[3] Id. at 1472.

[4] That test also requires the minority group to be compact enough to form a majority in a normally drawn district and that the minority group is politically cohesive. The other two prongs of the test were not at issue here; see Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).

[5] Molly E. Reynolds, “Republicans in Congress got a ‘seats bonus’ this Election (Again),” Brookings Institute, 11/22/2016, <https://www.brookings.edu/blog/fixgov/2016/11/22/gop-seats-bonus-in-congress/>

*Saint Louis University School of Law