SCOTUS Ruling On NC Redistricting Could Have Big Implications On Other Cases

May 23, 2017
Originally published on May 22, 2017 8:38 pm

For the second time in a seven-day span, the U.S. Supreme Court has struck down an act of North Carolina's General Assembly.

On May 15th, it was the state's voter laws.

On Monday, in a 5-3 decision, the court upheld a ruling that two congressional districts were illegal racial gerrymanders. And this opinion may have implications for other North Carolina cases working their way through the courts.

North Carolina's 12th congressional district is well known to the U.S. Supreme Court and election law experts like professor Rick Hasen, who also runs the Election Law Blog.

"I could teach an election law course using only cases from North Carolina," he quips.

And that's not hyperbole.

Take the fact that in this latest decision Justice Elena Kagan pointed out this was "the fifth time North Carolina's 12th has been before the court since 1993."

The 12th wasn't alone in this particular case. It was joined by the 1st congressional district in Eastern North Carolina. These two districts have historically been ones with high concentrations of minority voters.

Both had their boundaries redrawn by GOP lawmakers after the 2010 census, and the number of African-American voters in these two districts grew to a clear majority.

Lawyers representing North Carolina argued they were simply complying with the Voter Rights Act.

During oral arguments last December, Paul Clement told the court, "We know how to tell you when we're taking race into account. We said we're doing it, we're not playing hide the ball here, we did it with respect to CD 1 (congressional district 1)

Writing for the majority, Justice Kagan said by packing so many minority voters into one district, the state diluted their voting power in other districts. Therefore, it was an illegal racial gerrymander.

But the decision on the much-litigated 12th is where precedent may be set.  

After being redrawn by Republican lawmakers the 12th looked even more snake-like than before. With its head in Charlotte, it slithered up toward Greensboro sometimes no wider than the I-85 freeway.  

This odd shape allowed the percentage of African-American voters in the district to grow from around 44 percent to just over 50 percent.

Clement argued in defense of the state that the 12th was drawn not because of race, but to pack Democrats into the district. This dilutes Democratic votes in neighboring districts and creates a political advantage for Republicans. He is then questioned by Justice Kagan.

CLEMENT: "When it comes to CD 12, we look at the benchmark map, that's a political draw."

KAGAN: "Well the question is, is it? Right? I mean, that's the question the district court was trying to answer. Is it politics or is it race? If it's politics, it's fine. If it's race, it's not."

Kagan, along with liberal Justices Ginsberg, Sotomayor and Breyer, plus conservative Justice Clarence Thomas, found race was the factor. But that's not all.

There's an interesting point Kagan added to the footnotes of this ruling, says Rick Hasen of the Election Law Blog.

"She seems to suggest that race and party overlap with one another in certain places like North Carolina."

Because African-American voters overall tend to vote Democratic. "And therefore, when a state legislature passes a redistricting law with a partisan motivation that has a racial component to it, then that could constitute racial gerrymandering."

And this is where Monday's ruling could have implications for two other North Carolina cases working their way through federal courts.

The first has to do with these same two congressional districts. They were redrawn as the case moved through the federal court system, but they are again being challenged. This time, as partisan gerrymanders.

"That case is currently pending before the U.S. Supreme Court, and we'll see if they send that back to the lower court to look at that again or whether they take up a case of partisan gerrymandering directly which could happen as soon as the end of this term," Hasen says.

The other has to do with a federal ruling that 28 of the North Carolina's 170 state legislative districts are also racial gerrymanders. "In that case," Hasen explains, "the lower court had ordered special elections in 2017. And that case is currently pending before the Supreme Court. It would not be surprising for the Supreme Court to send that case back for reconsideration and we could see another order for special elections. That could possibly happen."

In response to Monday's ruling, Robin Hayes, the chairman of the North Carolina Republican Party, issued a statement says "the courts have put legislatures in an impossible situation, with their constantly changing standards."

And he quoted Justice Samuel Alito's dissent in the case:

"A precedent of this court should not be treated like a disposable household item - say, a paper plate or napkin - to be used once and then tossed in the trash. But that is what the court does today in its decision."

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