The order itself was short and to the point, included in a several-pages long list of denials and dispositions published by the U.S. Supreme Court this morning. It reads, in toto:
14-839 DICKSON, MARGARET, ET AL. V. RUCHO, ROBERT, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Supreme Court of North Carolina for further consideration in light of Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___ (2015).
What that means is that the North Carolina Supreme Court will have to reexamine the districts the state Legislature drew in 2011, after Republicans took power, to see if they pass constitutional muster, given the court’s ruling in the Alabama case last month. Specifically at issue is whether 26 of the districts the Republicans drew were drawn in such a way as to pack African Americans into minority-majority districts, thereby marginalizing their political clout (and, since blacks tend to lean Democratic, to whiten and Republican-ize surrounding districts).
In Alabama, the justices said a lower court used the wrong test when it upheld legislative districts and determined that race was not the primary motivating factor in drawing boundary lines.
The Supreme Court said judges in North Carolina must revisit their ruling in light of the Alabama decision.
In both states, Republicans strengthened their grip on power through redistricting.
Republicans are already out downplaying the decision, calling it a “procedural ruling” that in the end won’t matter very much. And in a sense that’s true. The Alabama decision dealt with how you determine whether race was a “predominant” factor in the redistricting, which is unconstitutional. (Gerrymandering predominantly for partisan advantage is more or less kosher.) In the court’s legalese:
The District Court also did not properly calculate “predominance” in its alternative holding that “[r]ace was not the predominant motivating factor” in the creation of any of the challenged districts. It reached its conclusion in part because it placed in the balance, among other nonracial factors, legislative efforts to create districts of approximately equal population. An equal population goal, however, is not one of the “traditional” factors to be weighed against the use of race to determine whether race “predominates” …. Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met. Had the District Court not taken a contrary view of the law, its “predominance” conclusions, including those concerning the four districts that the Conference specifically challenged, might well have been different.
No sooner had the Supreme Court ruling come down this morning than the attorneys who brought the case filed a motion with the state Supreme Court asking them to speed their review along and get this resolved before next year’s election season. And, to add a sense of urgency, they quote none other than Antonin Scalia, who actually dissented in the Alabama case but nonetheless paid lip service to the idea that racial gerrymandering was bad:
Prompt and proper resolution of this issue is of surpassing importance to the State and its citizens. As Justice Scalia observed just three weeks ago: “Racial gerrymandering strikes at the heart of our democratic process, undermining the electorate’s confidence in its government as representative of a cohesive body politic in which all citizens are equal before the law.”
The brief argues that the original trial court was correct to hold that North Carolina Republicans had unconstitutionally focused on race in drawing their epic and very effective gerrymanders (see map above)—in a purple-ish state, at least in presidential years, Republicans dominate both the Legislature and congressional delegation by about a 2:1 ratio—even as Republicans argue that they drew these districts to avoid Voting Rights Act-related litigation. But if the state Supreme Court changes course, it would still be up to Republicans in the General Assembly to redraw the lines. Sweeping change thus seems unlikely, though if the Republicans are forced to make adjustments—the state court could very well uphold the existing maps as it did before, just using different legal reasoning—the final map will probably be an improvement, if only because it couldn’t get much worse.
As David Nir, political director of the liberal blog Daily Kos, notes:
Opponents of North Carolina’s maps raised very similar arguments—take a look at the skinny, snake-like 12th District, which crams in a black majority running along a hundred-mile stretch of I-85 from Greensboro to Charlotte. They now find themselves in the same place as their peers in Alabama: waiting to see how a lower court decides the second time around. However, as legal scholar Rick Hasen explained when the Alabama decision was handed down, the Supreme Court’s ruling may only offer plaintiffs a “small” and “temporary” victory.
That’s because Republicans are free to draft new maps that maximize the number of seats they can expect to win, so long as they don’t rely on race as a proxy for voting behavior (or can at least do a better job of hiding their intentions). In other words, they can be as partisan as they want to be—they just need to be crafty about it. […]
So if North Carolina Republicans are forced to go back to the literal drawing board (well, laptop running fancy software), they’ll have less room to maneuver than their counterparts in Alabama.
The redistricting’s opponents hailed the Supreme Court’s decision. Bob Hall, executive director of Democracy NC, said in a statement:
The US Supreme Court is right: packing blacks into arbitrarily fixed super-majority districts is no longer required for them to elect candidates of their choice.
The divisive strategy used in drawing these maps undermines the development of multiracial fusion coalitions in North Carolina. White Democrats used similar strategies 120 years ago to fight a Fusion coalition of black Lincoln Republicans and white Populists – and now white Republicans are doing the same thing.
Democracy North Carolina recognizes that some partisan advantage and precinct splitting is inevitable in how new maps are drawn. But the plans developed in 2011 divided far more precincts than ever before and went well beyond the limits of acceptable political greed. North Carolina can and must do better.
“The U.S. Supreme Court could have just denied our petition,” Anita Earls, one of the attorneys fighting the redistricting, told the INDY this afternoon. “But they vacated that opinion. The North Carolina Supreme Court has to revisit its opinion.”
And that is at least something. Earls is also suing the Legislature over its recent redistricting of both the Wake County Commission and its earlier redistricting of the Wake County School Board; the county commission case includes a germane, race-related complaint over District 4, a minority-majority district ostensibly established to ensure black representation even though the county has a long history of electing blacks, and has two on the board currently. (The race angle wasn’t included in the school board lawsuit, which is under appeal.)
The ruling this morning doesn’t change the rules, per se, Earls says. “It was abundantly clear that there was no Voting Rights Act justification [for these districts]. … The law was already strong that you can’t do that. ”
That is especially true if the lines had an explicit racial intent, which she believes was the case. That intent, in her view, was “pushing white voters out of the Democratic Party,” leaving the impression that “the Democratic Party was only for black voters.” In other words, if blacks are constrained to a few districts, whites in the surrounding districts are politically free to ignore them, so they end up marginalized and isolated.
In a sense, then, the racial gerrymander and the partisan gerrymander are one and the same.
Of course, it’s worth noting here that Democrats, when they were in power, were hardly blameless. In fact, the Republicans sued over the districts Dems drew in the early aughts, and with good reason. The reality is, so long as you have politicians choosing their voters rather than the other way around, there’s always going to be shenanigans afoot. (This is true even though though political scientists are rather divided on how big a role gerrymandering has played in recent electoral history.)
Which brings us to State Sen. Jeff Jackson, D-Mecklenburg, who is probably the Legislature’s biggest (or at least most Internet-famous) champion of redistricting reform. Here, check out this neat little video he made.
“If the court gets involved,” Jackson told the INDY, “that’s a signal that we screwed up.”
Jackson is the sponsor of SB 28, which would take politicians mostly out of the redistricting process, instead establishing an independent body that would decide how lines are drawn, beginning in 2030. His bill has a companion in the House, that one sponsored by two Republicans, a Democrat and an NPA, so it is bipartisan. It also gives the Legislature some control over the process, as different political actors would make appointments to the commission, which would then present the Legislature three options to choose from. This is unlike what’s known as the Iowa model, in which the Legislature’s research outfit would decide for itself how the lines should be drawn, without the Legislature’s input. There also a bill to this effect in the Legislature right now, cosponsored by none other than Paul Stam, R-Wake.
His version, he believes, is the more transparent model. That said, “I support anything other than what we have now. I would take monkeys throwing darts at a board over what we have now.”
Still, neither of those bills has gotten much traction. Stam’s bill has been stagnant for two months; Jackson’s bill and its House counterpart have languished since early February. Asked if today’s ruling might change things, Jackson sounds hopeful.
“It should,” he says. “Because if there’s a perception that the Supreme Court is shifting its [position] on redistricting, now it’s in their interest to control their destiny a little big more.”