By Leland Ware, Louis L. Redding Professor of Law & Public
Policy, University of Delaware
Harris v. McCrory concerned North Carolina's
Congressional Districts 1 and 12 as they stood after the 2011 redistricting.
The plaintiffs filed a civil action alleging that the congressional map adopted
by the legislature violated the Fourteenth Amendment because race was the
predominant consideration when the districts were redrawn after the 2010 Census.
The case was adjudicated by a three-judge panel.
North Carolina’s Republican lawmakers argued that the
legislature was making a good-faith effort to comply with the Voting Rights Act
when it created a new “majority minority” congressional district. The plaintiffs argued that lawmakers
used the Voting
Rights Act as a
pretext to pack black voters into two districts, which made the surrounding
districts safer for Republican incumbents. On February 5, 2016, the three-judge panel ruled in the
plaintiffs’ favor, finding “strong evidence that race was the only
nonnegotiable criterion and that traditional redistricting principles were
subordinated to race.”
The Court held that the challenged congressional districts
were the product of an unconstitutional racial gerrymander. This was a “packing"
scheme in which many minority voters were pushed into a few highly concentrated
districts and draining the black population's voting power in other districts. The
Court’s opinion described the North Carolina’s 12th Congressional District as a
“serpentine district [that] has been dubbed the least geographically compact
district in the Nation.” The legislature made race a priority over all other
districting considerations. The Court ordered the North Carolina to create new
districts within two weeks after the entry of its decision.
The Republican majority in the North Carolina legislature acted
just a few weeks after the Supreme Court’s 5-to-4 ruling in Shelby v. Holder which effectively
dismantled a central provision of the1965 Voting Rights Act that required nine states, mostly in the South, to secure
federal approval before changing their election laws. Republicans apparently viewed
the Shelby decision as a license to
revert to dubious, pre-Voting Rights Act tactics.
In an earlier case, Wittman
v. Personhuballah, a
three-judge panel found that
Virginia lawmakers engaged in racial gerrymandering by packing minority voters
into one congressional district. Virginia’s plan packed more African American voters into what
was the only congressional district in Virginia with a majority-minority
population represented by a black incumbent, Congressman Bobby Scott. This made
adjoining districts whiter and safer for Republican incumbents. Democrats argued that Republicans
created safe seats for the GOP by packing minority voters into a single
District which diluted minority voting strength in surrounding districts. The
Court agreed and ordered the legislature to re-draw the district maps.
In another case, Alabama Legislative Black Caucus v.
Alabama, and Alabama Democratic Conference v. Alabama, the Supreme Court in a 5-4 decision held
that the state legislature racially gerrymandered districts and remanded the
case for further consideration. Alabama legislators added large numbers of African Americans to
districts that were already heavily populated with minorities. This made other
districts much whiter and more likely to elect Republican candidates. The
legislators also drew district lines in ways that minimized the influence of
African American voters in districts where they were the minority. The Supreme Court
found that there was strong and “possibly overwhelming,” evidence that race was
the primary motivation in establishing the boundaries of the districts.
The Republican gerrymanders were the product of the Republican
State Leadership Committee’s Redistricting Majority Project. In 2010 GOP donors contributed
millions of dollars to Republican candidates in state legislative elections with
the purpose of redrawing congressional lines. Republican strategists calculated
that controlling the redistricting process in targeted states would have the
greatest impact on determining how both state legislative and congressional
district boundaries would be drawn. Drawing new district lines in states
with the most redistricting activity presented an opportunity to strengthen
conservative policymaking at the state level and maintain a Republican majority
in the U.S. House of Representatives.
The strategy worked. In the following year, hundreds of
Republicans were elected to state legislatures. After taking office, Republican
governors and state legislatures created congressional districts for maximum
partisan advantage. Republican gerrymandering schemes packed Democratic voters
into single districts, while Republican voters were spread out in ways that
resulted in more congressional seats for the GOP. African American voting strength was diluted as
voters were packed into a few legislative districts. The Republican racial
gerrymanders are examples of the chicanery and obstructionist tactics the
Voting Rights Act was intended to end.
An appeal of the Virginia case is pending in the Supreme
Court. A hearing has been scheduled for March 21, 2016. A ruling will be issued
sometime before the current term ends in June.
