- The Washington Times - Monday, May 22, 2017

The U.S. Supreme Court on Monday rejected two North Carolina congressional district maps, ruling they were unconstitutional because lawmakers relied too heavily on race when they redrew boundaries after the 2010 Census.

The 5-3 ruling was hailed by Democrats and civil rights groups, who said it sends a strong warning to state lawmakers who might attempt to dilute the voting power of minorities by packing them in a small number of congressional districts.

But conservatives said the ruling does little to explain the degree to which race can be taken into account in the redistricting process and muddies the waters on determining whether a decision is based on race and political affiliation.

The ruling affirmed a federal appellate court’s decision that racial considerations were the dominant factor when two congressional districts were redrawn to have majority-black voting-age populations.

Voters filed suit after the congressional districts were redrawn in 2011, alleging that lawmakers diluted the influence of black voters by packing minorities into two long-held districts.

“The Constitution entrusts States with the job of designing congressional districts,” Justice Elena Kagan wrote for the majority. “But it also imposes an important constraint: A State may not use race as the pre-dominant factor in drawing district lines unless it has a compelling reason.”

Racial gerrymandering complaints have arisen out of the two congressional districts, which are both held by Democrats. Rep. G.K. Butterfield has represented the 1st District since 2004, and Rep. Alma S. Adams was elected to represent the 12th District in 2014.

Republicans currently hold 10 of North Carolina’s 13 congressional seats.

Sherrilyn Ifill, president of the NAACP Legal Defense Fund, called Monday’s ruling a “significant victory in the ongoing struggle to ensure that minority voters can fully participate in our democratic process.”

She said it will send a strong signal that attempts in other states to “neutralize black and Latino voters through racial gerrymandering will be struck down as illegal and unconstitutional.”

Others expect the case will lead to additional challenges of redistricting decisions.

“You are going to see more lawsuits where plaintiffs are going to attempt to challenge gerrymandered maps on the grounds they were racially gerrymandered because it’s a seemingly viable route for those kind of claims to be brought,” said Thomas Wolf, counsel with the Brennan Center’s Democracy Program. “We may see a higher volume of litigation to be brought to benefit African-American constituencies, particularly in the South.”

Looking ahead to the next Census, when population shifts will again require districts across the country to be redrawn, conservative legal experts said the ruling does very little toward clarifying how race can be taken into account constitutionally, or deciphering between racial gerrymandering and partisan gerrymandering, which is allowed.

“If you take too much race into account, you’re going to violate the law. If you take too little race into account, you will violate the law. You have to take just the right amount of race into account,” said Hans von Spakovsky, a senior legal fellow at The Heritage Foundation. “I don’t think this decision in any way clarifies for state legislatures what they can or can’t do in the restricting process.”

The problem was highlighted by Justice Samuel Anthony Alito Jr., who issued a dissent that was joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy.

Justice Alito wrote that race and political affiliation are “highly correlated” in many jurisdictions, making it difficult to separate the two.

“This phenomenon makes it difficult to distinguish between political and race-based decision making,” he wrote for the minority. “If around 90 percent of African-American voters cast their ballots for the Democratic candidate, as they have in recent elections, a plan that packs Democratic voters will look very much like a plan that packs African-American voters.”

Prior to redistricting in North Carolina, neither district had a majority black voting-age population, but each consistently had elected representatives preferred by black voters. Population shifts required North Carolina to add 100,000 people to the 1st District, but no changes were needed in the 12th District. Under the district map changes, the black voting-age population in the 1st District increased from 48.6 percent to 52.7 percent, and in the 12th District from 43.8 percent to 50.7 percent.

“Uncontested evidence in the record shows that the State’s mapmakers, in considering District 1, purposefully established a racial target: African-Americans should make up no less than a majority of the voting-age population,” wrote Justice Kagan, who was joined in her opinion by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. “The result is a district with stark racial borders: Within the same counties, the portions that fall inside District 1 have black populations two to three times larger than the portions placed in neighboring districts.”

Even though no changes were required in the 12th District, lawmakers undertook dramatic efforts, contending that the changes were made based on political, not racial, gerrymander. The court highlighted the effect the changes had on the makeup of the district.

“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,” Justice Kagan wrote. “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.”

Justice Clarence Thomas, a stanch conservative, filed an unusual concurrence with the liberal justices, saying he didn’t believe that the Voting Rights Act should apply to redistricting and therefore “cannot justify a racial gerrymander.”

The newest addition to the court, Justice Neil M. Gorsuch, did not participate in the case because he was not on the bench when arguments were heard.

North Carolina redrew its congressional district maps in 2016 to comply with lower court rulings, so Monday’s ruling will not send the state back to the drawing board.

Republican state lawmakers emphasized at the time that the districts were being redrawn to keep the partisan hold they had on the state’s congressional seats, a practice that is allowed by the court. Two lawsuits were filed in North Carolina challenging the partisan gerrymander, and the Supreme Court could be poised to take up a case out of Wisconsin that also challenges the practice.

The Supreme Court could look to further distinguish between race and partisan gerrymandering by hearing one of the cases that more directly challenges redistricting based on political affiliation, said Justin Levitt, a former DOJ attorney in the civil rights division and a professor of law at Loyola Law School in Los Angeles.

“The political parties, both Republicans and Democrats, have sought to challenge partisan outcomes they don’t like based on claims that are available — like race claims,” Mr. Levitt said. “If the court thinks they are not getting the straight scoop on race cases, then they might want to create a clearer distinction.”

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