Chemerinsky: Racial gerrymandering can no longer be justified as proxy for party affiliation
Erwin Chemerinsky
Virtually every year, the U.S. Supreme Court has an important case concerning the use of race in drawing election districts. This reflects the confusing nature of the law in this area. This term is no exception, but its most recent ruling in Cooper v. Harris significantly changes and clarifies the law.
Almost a quarter-century ago, in Shaw v. Reno (1993) and Miller v. Johnson (1995), the Supreme Court held that the government cannot use race as the predominant factor in drawing election districts, including to benefit racial minorities, unless strict scrutiny is met—that is, the government’s action is shown to be necessary to achieve a compelling government interest.
However, in Easley v. Cromartie (2001), the court held that the government may use race as a proxy for political party affiliation in drawing election districts. In that case, the court said that the North Carolina legislature could use race as a way of identifying who was likely to vote Democratic because African-Americans in that state overwhelmingly vote Democratic. This reflects the law that partisan gerrymandering—drawing districts to maximize safe seats for the political party that controls the legislature—is permissible, while racial gerrymandering is not.
For the last 15 years, the lower courts and the Supreme Court have struggled with how to decide if it is race or party that is responsible for drawing the election districts. The court decided two cases about voting districts this term. The first, from Virginia, did not address this question, but the second, from North, Carolina did.
It is important to keep in mind that the political context of litigation over the use of race in drawing election districts has changed greatly over the last 25 years. In the 1990s, litigation about the use of race in districting concerned challenges to using race to create districts where racial minorities were the majority to increase the likelihood of electing minority representatives. It was liberals who favored this, and the conservative majority of the court that disapproved. The cases now, like the one from North Carolina and one last year from Alabama, often involve the use of race to achieve partisan gerrymandering that benefits Republicans.
Bethune-Hill v. Virginia State Board of Elections
After the 2010 census, the Virginia State Legislature drew new lines for 12 state legislative districts, with a goal of ensuring that each district would have a black voting-age population of at least 55 percent. An equal protection challenge was brought. As to 11 of the districts, a three-judge federal district court concluded that the voters had not shown, as Supreme Court precedent requires, “that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” The federal district court said that race predominates only where there is an “actual conflict between traditional redistricting criteria and race.” As to the remaining district, the lower court found that race did predominate, but that the lines were constitutional because the legislature’s use of race was narrowly tailored to a compelling state interest: compliance with the Voting Rights Act of 1965.
The Supreme Court reversed and remanded as to the 11 districts where the lower court had concluded that the use of race was not a predominant factor in districting. Justice Anthony Kennedy, writing for the high court, said that the lower court used the wrong legal test.
The court reiterated that the Equal Protection Clause prohibits a state, without sufficient justification, from “separat[ing] its citizens into different voting districts on the basis of race.” The court also reiterated that a plaintiff alleging racial gerrymandering bears the burden “to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.”
The court, though, rejected the lower court’s reasoning that as a prerequisite to showing racial predominance, the challengers must show an actual conflict between the enacted plan and traditional redistricting principles. If race is the predominant purpose in districting, the government must meet strict scrutiny—regardless of whether there is a conflict between the plan and traditional redistricting principles.
The court held that drawing the 11 districts with the goal of creating districts that were 55 percent African-American clearly had race as the predominant purpose. But the court said it would not decide whether this was unconstitutional; rather it ruled that it is for the lower court to decide first whether the government has met strict scrutiny. As for the twelfth district, the court concluded that the government met strict scrutiny: the use of race was narrowly tailored to avoid violating the Voting Rights Act.
As the high court made clear in its conclusion, it was not changing the law in this area but applying the principles of Shaw v. Reno and Miller v. Johnson: If race is the predominant factor in drawing election districts, equal protection is violated unless the government action is necessary to achieve a compelling purpose.
Cooper v. Harris
The case of Cooper v. Harris, decided May 22, is much more significant. It involves two congressional districts in North Carolina that long have been the subject of litigation. The North Carolina legislature drew these districts to have a majority African-American populations, though they previously were not majority-black.
The Supreme Court, in a 5-3 decision, concluded that race was the predominant factor in drawing these two election districts and that the districting violated equal protection. Justice Elena Kagan wrote for the Court, joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor.
As for one of the districts, District 1, the court said that uncontested evidence in the record showed that North Carolina’s mapmakers purposefully established a racial target: African-Americans should make up no less than a majority of the voting-age population. The court reaffirmed that complying with the Voting Rights Act is a compelling interest, but said that North Carolina did not demonstrate that it would have violated the Voting Rights Act without the consideration of race in districting.
For District 12, the issue was whether race or party was the predominant factor in drawing the district. The court said that it needed to give great deference to the fact-finding of the district court, reversing its factual determinations only for clear error. The court affirmed the district court’s judgment that race was the predominant factor in districting.
Most important, the court declared: “In other words, the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.” This is a very significant change in the law; no longer can racial gerrymandering be justified on the ground that it is done as a proxy for political party affiliation.
The court also rejected the state’s argument that the challenger must present “an alternative [map] that achieves the legislature’s political objectives while improving racial balance.”
Justice Samuel A. Alito wrote a strong dissent, arguing that the majority opinion was inconsistent with Easley v. Cromartie. He said that the use of race as a proxy for political party for purposes of partisan gerrymandering is permissible. He also said that challengers should be required to present an alternative map. He said that the majority had treated Easley v. Cromartie “like a disposable household item—say a paper plate or napkin—to be used once and then tossed in the trash.”
Interestingly, the greatest significance of the case is found in the footnotes, where the majority opinion explicitly says that if race is the predominant factor in drawing election districts, strict scrutiny must be met, even if the purpose for using race is partisan gerrymandering. This should end the “is it race or is it party” that has perplexed courts for the last 15 years since Easley v. Cromartie. No longer do courts need to engage in the impossible inquiry of whether it is race or party that caused the legislature to draw election districts because those two considerations are often intertwined given that African-Americans overwhelmingly vote Democratic.
This won’t be the last Supreme Court case about race and districting, but it is one of the most important in recent years.
Erwin Chemerinsky will become dean of the University of California at Berkeley School of Law on July 1. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
