We are four years away from the next full round of redistricting.  The redistricting process is a combination of federal law, state law, and local politics.  The fact that there are legal rules governing the process means that individuals who do not like one of the many maps (congressional, state senate, state house, county commission, city council) can bring a court challenge to that map.  When discussing federal law, there are two crucial provisions — the Fourteenth Amendment and Section 2 of the Voting Rights Act.  (Additionally, there is some suggestion that the First Amendment may have an impact on certain types of gerrymanders.)  This week the Supreme Court issued an opinion on North Carolina’s congressional districts that attempted to reconcile the Fourteenth Amendment and the Voting Rights Acts.

The background of this case is that, two decades ago, the Supreme Court (in a case involving North Carolina) held that a racial gerrymander — one in which race played a significant role in the drawing of the lines — would be subject to strict scrutiny (the most state unfriendly form of review — requiring showing of both a “compelling interest” justifying the use of race and that the use of race was “narrowly tailored” to meet that compelling interest).  Over the years, the Supreme Court has clarified that, to trigger state scrutiny, race must be the predominate factor in drawing the lines.  The Supreme Court has also clarified that Section 2 of the Voting Rights Act can be a compelling interest.

North Carolina currently has three Democratic representatives in Congress — from the 1st district, the 4th district, and the 12th district.  Before the last round of redistricting, African-Americans represented around 48% of the voting age population (BVAP in election law jargon) of the 1st district and 43% of voting age population of the 12th.  That BVAP was enough to make African-Americans into a very significant segment of the Democratic primary vote in those districts and there are enough white Democrats in those districts that — even in bad years nationally, the Democratic candidate gets well over 60% of the vote in those districts.  In short, African-Americans could get their preferred candidate selected in those districts even though they did not have 50% of the vote.  In the trial court, North Carolina conceded that they did take race into account in drawing the 1st district but claimed that they did so to meet Section 2 (that is by making the 1st district into a majority-minority district),  On the 12th district, North Carolina claimed that they did not draw that district to pack it with African-Americans but rather to pack it with Democrats.  However, there was some evidence that — at least for one county in the district — they did expressly consider race and, also, that they used race as a proxy for partisanship.  Additionally, the 12th was already compliant with “one man, one vote” even if North Carolina had kept the old district lines and the changes added mostly African-Americans while removing mostly whites. Continue Reading...