The May 22 SCOTUS decision Cooper v. Harris found that North Carolina Republicans relied too heavily on race when they drew two congressional voting districts, affirming that the “Equal Protection Clause of the Fourteenth Amendment prevents a State, in the absence of ‘sufficient justification,’ from ‘separating its citizens into different voting districts on the basis of race.’” In this Q&A, voting rights and redistricting expert Professor Nate Persily discusses the importance of this decision.
Can you explain the ruling?
The Court ruled that two of North Carolina’s congressional districts were unconstitutional because they excessively relied on race by overconcentrating African American voters. In District 1, the Court rejected the argument that the Voting Rights Act required the state to adopt a requirement of a majority minority district—that is, a district in which over fifty percent of the voters are African American. The Court ruled that the state cannot use blunt targets like “majority-minority,” but must look at what percentage (given the extent of racially polarized voting) would provide an equal opportunity for the African American community to elect its preferred candidates.
In striking down North Carolina’s 12th congressional district, the Court rejected the state’s argument that its predominant partisan purpose excused an otherwise unconstitutional racial gerrymander. The court found that race and party were so intertwined in NC that packing African Americans into a district to effectuate a Republican gerrymander could still constitute unconstitutional racial discrimination under the Fourteenth Amendment’s Equal Protection Clause.
How significant or far reaching is this ruling? Some have suggested that it could affect voting maps throughout the South. Do you agree?
I do not believe this decision is as significant as many others seem to believe. It may affect a few districts here and there, but it should not have widespread consequences for either partisan or racial gerrymanders. The most significant aspect of the decision was the fact that Justice Clarence Thomas joined the four more liberal justices to strike down the second district. He has been a consistent opponent of majority-minority districting on color blindness grounds and has questioned whether the Voting Rights Act applies to redistricting at all. But rarely does one see a voting rights opinion with this kind of split.
Are there other voting rights cases that you’re watching now?
The big case on the horizon comes out of Wisconsin and concerns a constitutional challenge to partisan gerrymandering. If the court strikes down the Wisconsin plan as an unconstitutional partisan gerrymander, then we should expect courts to be heavily involved in the next round of redistricting. The Court has been evenly divided on whether partisan gerrymandering claims are justiciable – that is, whether the Court should even get involved in evaluating their constitutionality given how difficult it may be to draw an administrable line as to when some partisanship becomes too much partisanship. The last time the Court faced the issue head on, the four more conservative Justices wanted the Court to rule the issue non-justiciable, the four more liberal Justices each had a separate standard by which they would find partisan gerrymanders unconstitutional, and in the middle was Justice Anthony Kennedy who deemed the issue justiciable, but who could not come up with a standard at the time. The question in the Wisconsin case making its way to the Court is whether Justice Kennedy is now willing to adopt a standard that deems certain levels of partisan greed and unfairness to be unconstitutional.
Nate Persily is the James B. McClatchy Professor of Law at Stanford Law School. He has served as a court-appointed expert to draw legislative districting plans for Georgia, Maryland and New York and as special master for the redistricting of Connecticut’s congressional districts. Most recently, he served as the Senior Research Director for the Presidential Commission on Election Administration, a bipartisan commission created by the President to deal with the long lines at the polling place and other administrative problems witnessed in the 2012 election. The Report of the Commission is available at www.supportthevoter.gov.