Understanding last week's critical redistricting ruling

by Steve Ford, NC Council of Churches, published in NC Policy Watch, May 30, 2017.

[Editor’s note: This morning, in the case of Dickson v. Rucho, the United States Supreme Court ordered the North Carolina Supreme Court to once again review a challenge to the state’s legislative maps. As expected, the Court directed the state court to do so in light of its ruling last week that North Carolina’s 2011 congressional map amounted to an unconstitutional exercise in racial gerrymandering. In the essay below, veteran North Carolina political observer Steve Ford explains last week’s ruling and places it in the context of GOP efforts to alter state election laws more generally.]  

Following the elections of 2010 – tilted as they were by an intense right-wing pushback against President Barack Obama midway through his first term – Republicans in the N.C. General Assembly saw themselves as large and in charge.

For the first time in the state’s modern history, they had won majorities in both the House and Senate. And the timing was beautiful. They would control the fateful process by which legislative and congressional voting district boundaries were adjusted to reflect population changes documented in the 2010 national census.

They would decide which voters lived in which districts – or in other words, they could choose their constituents to achieve maximum advantage at the polls.

If they played their cards right, the boundaries they set would be good for the next 10 years. As we’ve since come to find out, there was a national Republican strategy to push for legislative victories in 2010 for just this reason.

Political parties with a grip on the machinery of redistricting long have maneuvered to strengthen themselves by drawing districts to give their candidates an edge. It’s called gerrymandering, after the notorious salamander-shaped district created in 1812 to benefit an ally of Massachusetts Gov. Elbridge Gerry.

North Carolina’s legislators in 2011 would have disputed use of the term, but election district maps they produced that year were squarely in the gerrymandering tradition. GOP prospects were boosted while Democrats saddled with unfavorable districts on the whole have suffered.

Now, in a decision that could reshape the rules of the redistricting game, the U.S. Supreme Court has declared that the plan for North Carolina congressional districts devised six years ago was not merely an unseemly exercise in unprincipled partisanship. It was an unconstitutional abuse of power.

Less than equal

The abuse arises from the fact that the Republican scheme devalued the votes of African-Americans via gerrymanders driven by race. By assigning inordinate numbers of black voters to two of the state’s 13 districts, the high court ruled, those citizens’ right to equal protection under the law was violated. Because of their race, they were treated in a way that diminished their ability to influence the overall election outcome.

The northeastern-based 1^st Congressional District for years had elected a black representative, recently the Democrat G.K. Butterfield, despite having more white voters than black. But as redrawn in 2011, the district was extended awkwardly into Durham with the declared aim of pulling in enough black voters to put them in the majority.

In its defense of a lawsuit challenging the redistricting plan, the state argued that it needed to give the 1^st District a majority-black composition so that the plan would pass muster under the federal Voting Rights Act, which is supposed to guard against the dilution of minority voting strength. But the Supreme Court’s May 22 ruling said that argument involved a misinterpretation of the act’s requirements.

For the Republicans it was a self-serving misinterpretation – since as more black voters were moved into the 1^st District, there were fewer to be allocated to neighboring districts. Because black voters in North Carolina lean heavily Democratic, the upshot was to boost a Democrat’s chances in a district where the party already was successful while undermining them elsewhere.

The ruling, written by Justice Elena Kagan, laid down a principle that should loom large in ongoing redistricting disputes.

North Carolina Republicans had claimed they fashioned the districts, shuffling Democratic voters who happened to be black, to help themselves politically – a prerogative generally assented to by the courts out of deference to the states’ responsibility for redistricting. But the court turned thumbs down on the map drawers’ use of race as a proxy for party.

The justices might as well have told the legislators, so proud of how they’d sliced and diced the electorate with their fancy mapping software, “We know what y’all have been up to. Now cut it out!”

Unfortunately, it hasn’t been quite that simple. After the 2011 map was disallowed last year by a federal trial court in Greensboro (the ruling that’s now been upheld by the court in Washington), legislators redrew the districts ostensibly with no attention paid to their racial makeup. They were astonishingly up-front about their aim, which was to maximize Republican-held seats in the state’s congressional delegation.

It’s our party; cry if you want to

The previous alignment had yielded a delegation of 10 Republicans and three Democrats — nowhere close to the actual, more balanced partisan breakdown among the state’s voters. Lo and behold, the map that legislators devised in response to the court’s rejection of their previous effort also yielded a 10-3 split in the elections last fall.

Top legislators virtually bragged about how they’d drawn the districts to ensure the highest possible number of GOP wins. Not surprisingly, that amounted to a red flag waved in the faces of voting rights advocates, who filed suit in objection to what they understandably saw as partisan gerrymandering carried to impermissible extremes.

That suit, when it inevitably reaches the high court in Washington, could apply the brakes once and for all to the abuse of redistricting – nominally a benign process to equalize district populations – for partisan gain.

Meanwhile, the justices’ rebuke of racial gerrymandering, when it’s obvious that black voters are being sorted out as a means of undercutting the party most of them favor, stands as an important milestone along the path toward elections in which all voters have an equal say.

The high court’s findings with respect to North Carolina’s 1^st Congressional District were unanimous (newly confirmed Justice Neil Gorsuch didn’t participate). There was, however, a difference of opinion with regard to the 12^th District, whose infamous Greensboro-to-Charlotte configuration along the I-85 corridor has made it perhaps the nation’s Exhibit A when it comes to the absurdities of racially oriented districting schemes.

The district, created in the early ’90s to be friendly territory for black candidates, had met that expectation by electing a black Democrat, Mel Watt, to several terms. And that was despite the fact that its black voting age population since 1998 had been well below 50 percent. The 2011 map revision, in an effort to enhance Republican prospects in adjacent districts, pulled more black voters into the 12^th to the point where they constituted a slim majority.

As Kagan wrote, “District 12 (unlike District 1) was approximately the right size as it was: North Carolina did not — indeed, could not — much change its total population. But by further slimming the district and adding a couple of knobs to its snakelike body (including in Guilford County), the General Assembly incorporated tens of thousands of new voters and pushed out tens of thousands of old ones. And those changes followed racial lines: To be specific, the new District 12 had 35,000 more African-Americans of voting age and 50,000 fewer whites of that age.” The black voting age population rose from 43.8 percent to 50.7 percent.

The plan’s defenders acknowledged their plan’s racial impacts, but maintained it was all about enhancing partisan advantage, as they were entitled to do. Justice Samuel Alito, in a dissent joined by Chief Justice John Roberts and Justice Anthony Kennedy, agreed that the district as redrawn cleared the constitutional bar.

But Kagan’s majority opinion – in which conservative Justice Clarence Thomas joined — said the plan’s manipulation of black voters failed to pass the legal tests necessary for it to be allowed. So the trial court’s finding that the district’s realignment was unconstitutional was upheld.

There’s a pattern

State Rep. David Lewis of Dunn and then-Sen. Bob Rucho of Matthews, the legislature’s redistricting chairs, shepherded the process with hands-on involvement. Their constant refrain in response to criticism from voting rights advocates was that their maps were “fair and legal.” Well, take it from the Supreme Court: Not hardly.

And Republican legislative chiefs can’t help but have noticed that they’ve been on a legal losing streak. On May 15, the Supreme Court announced it wouldn’t hear the state’s appeal of a lower court ruling that invalidated a sweeping attempt to make it harder for people to vote.

A tough voter ID law and curbs on early voting are among the provisions Republicans expected would work in their favor, cutting into the number of Democratic ballots. But federal judges recognized unconstitutional voter suppression for what it was.

Now it’s possible that another big North Carolina redistricting case before the Supreme Court – involving legislative districts – could again see Republican efforts shot down.

Federal judges have found impermissible racial gerrymandering in 19 of the 120 House districts and nine of the 50 Senate districts. The legislature has appealed an order to redraw the maps.

Anita Earls, executive director of the Durham-based Southern Coalition for Social Justice and a litigant for plaintiffs in the case, suggests Kagan’s ruling on the congressional districts could be a signal.

“What I find most significant is that the legislature made the same legal mistake and used race the same way in drawing the state’s House and Senate districts,” she said on her group’s website. “This opinion, with Justice Thomas joining the majority, must mean those districts are also unconstitutional.”

Our political system is competitive, and over the years plenty of sharp elbows have been thrown, by Republicans and Democrats alike. Certainly the Democratic Party in North Carolina, going back to its inglorious past as the champion of white supremacy, practiced voter suppression with a vengeance. Racial gerrymandering was a moot point when African-Americans were scarcely allowed to vote at all.

These days, though, it’s the Republican legislative majority that has been willing to trample on individual rights in furtherance of a partisan agenda – an agenda that often runs counter to the interests of minority citizens coping with poverty and other disadvantages. If the federal courts manage to bring those legislators into line, they will have done more than a good day’s work.

Steve Ford, former editorial page editor at Raleigh’s News & Observer, is now a Volunteer Program Associate at the North Carolina Council of Churches.

http://www.ncpolicywatch.com/2017/05/30/understanding-last-weeks-critical-redistricting-ruling/