Monday, February 29, 2016

Racial Gerrymandering in North Carolina: Harris v. McCrory

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.