Restricting Race-Conscious Redistricting

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Two decisions by the Supreme Court impose new limits on racial redistricting.

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After a long hiatus, racial gerrymandering is back in the spotlight. The U.S. Supreme Court has issued three major decisions on the subject since 2015. All these cases involved Republican-drawn redistricting plans challenged under the Equal Protection Clause on the ground that they packed racial minorities into districts in a way that was not justified by the interest in complying with the Voting Rights Act (VRA). The VRA sometimes requires districts from which minorities have the opportunity to elect their representative of choice, but nowadays it is often used as a pretext for drawing districts to advantage the dominant party.

The two opinions issued this past term, Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris, clarify the limits on states’ consideration of race when drawing districts. Taken together, they substantially limit Republican elected officials’ ability to use the VRA as a pretext for partisan gerrymandering. They also make it harder to justify the intentional creation of districts with a predetermined percentage of racial minorities.

Although resounding victories for the Democratic Party, these decisions have more worrisome implications for Republicans and at least some minority legislators. If line-drawers set a numerical racial target for particular districts (e.g., over 50 percent black or Latino), those districts will be vulnerable to constitutional challenges. States would thus be well-advised to avoid explicit racial targets in the next redistricting cycle.

The First Generation. To understand the current round of racial gerrymandering litigation, it is helpful to review the origins of this doctrine. The seminal case is 1993’s Shaw v. Reno, an equal protection challenge to two majority-black congressional districts in North Carolina.

Back in the early 1990s, Democrats still dominated the redistricting process in North Carolina and other Southern states. North Carolina had not sent a single African-American representative to Congress since the Nineteenth Century, even though blacks made up roughly one-fifth of the state’s population. The North Carolina legislature enacted a redistricting plan that included two majority-black congressional districts (the 1st and 12th Congressional Districts). The plan was designed to protect white Democratic incumbents while also satisfying the demands of the U.S. Department of Justice (DOJ). At the time, Section 5 of the VRA required certain covered jurisdictions to obtain advance approval (or “preclearance”) of voting changes from DOJ or a federal court. DOJ insisted on the creation of two majority-black districts as a condition for preclearance, and North Carolina’s legislature obliged. It drew two oddly shaped districts that would allow blacks to elect their preferred candidates, without harming white Democrats in neighboring districts.

On a 5-4 vote, Shaw v. Reno allowed an equal protection challenge to North Carolina’s two majority-black districts to go forward. In so doing, the Court authorized a new kind of constitutional claim arising from the excessive use of race in redistricting.

In a later decision, Miller v. Johnson, the Court held that strict scrutiny applies when race is the predominant factor in drawing district lines, meaning that the district will be upheld only if it is narrowly tailored to a compelling state interest. As a result of the Shaw doctrine, as extended by Miller, majority-minority districts in several states were struck down in the 1990s as impermissible racial gerrymanders.

Shaw and its progeny created a sort of Goldilocks problem for line-drawers. The VRA sometimes requires that race be considered when drawing district lines, in order to protect racial minorities from having their votes diluted. But if too much consideration is given to race, then the district may be challenged under Shaw as an impermissible racial gerrymander. Only by giving just the right amount of consideration to race could states avoid litigation.

That dilemma was eased in 2001 by another case out of North Carolina, Easley v. Cromartie. Easley rejected a challenge to one of North Carolina’s redrawn congressional districts. The Court reasoned that strict scrutiny applies only if race was the predominant factor in drawing a district, but not if partisan considerations dominated. The Court went on to hold that plaintiffs had failed to show that “race rather than politics” was the predominant factor explaining the challenged district’s boundaries.

That is how things stood through the 2000 redistricting cycle. Although there were plenty of districts in which racial minorities—especially African-Americans and Latinos—were able to elect their candidates of choice, there were no major racial gerrymandering decisions for more than a decade. In the relatively few cases where states’ plans were challenged on racial gerrymandering grounds, states successfully argued that their primary goals were political rather than racial.

The Current Generation. The big problem is that race and politics can be difficult to disentangle. Although this problem has always existed, it is especially acute in an age where an overwhelming majority of Latinos and roughly nine in ten African-Americans vote for Democrats, while most whites vote for Republicans. This pattern of racial/partisan polarization is especially pronounced in much of the South.

The confluence of race and party came to a head in the most recent redistricting cycle. Due to their electoral success in the 2010 election, Republicans in many states had complete control over the redistricting process that followed. Republicans were particularly adept at drawing district maps that maximized their partisan advantage. One of the means through which they did so was by using the VRA to justify the packing of African-Americans and Latinos into hyper-concentrated Democratic districts. The ultimate effect was to increase the percentage of Republican voters in neighboring districts and thus give Republicans more seats overall.

Republican-drawn plans gave rise to the three major racial gerrymandering cases that the Supreme Court has decided this decade. In the first, Alabama Legislative Black Caucus v. Alabama, the state adopted a policy of trying to keep the African-American population of each majority-black district at or above its prior level. Alabama’s redistricting plans included several districts that were over 60 percent or even 70 percent African-American. The Supreme Court allowed a Shaw-based challenge to proceed, rejecting Alabama’s argument that the VRA required the state “to maintain a particular numerical minority percentage” in these districts. On remand, the district court invalidated 12 of the 36 challenged districts, concluding that race was the predominant factor and the districts were not justified by the state’s interest in complying with the VRA.

That brings us to the two racial gerrymandering cases decided this year. In Bethune-Hill, the Court considered a constitutional challenge to 12 state legislative districts in Virginia. The Virginia legislature had set a 55 percent target for the black voting-age population of these districts. The court below nevertheless rejected a constitutional challenge, finding that race was not the predominant factor in 11 of the districts. As for the remaining district, the lower court found that race was the predominant factor, but that the state’s consideration of race was narrowly tailored to the compelling interest in complying with the VRA.

The Supreme Court reversed with respect to the first 11 districts, concluding that the lower court had applied the wrong standard in deciding whether race predominated. The lower court believed that plaintiffs had to show a departure from traditional redistricting principles (such as compactness) in order to prevail. Justice Anthony Kennedy’s majority opinion clarified that plaintiffs are not required to show that the challenged districts have a bizarre shape or otherwise depart from conventional redistricting principles, in order to establish that race was the predominant factor. This aspect of the decision is squarely in line with existing precedent, most notably Miller.

The Court upheld the remaining district in Bethune-Hill, with only Justice Thomas dissenting. Even though it was drawn with the purpose of having a supermajority of African-Americans, the majority concluded that this district was narrowly tailored to comply with Section 5 of the VRA. It noted that, in drawing this district, the legislature relied on “a careful assessment of local conditions and structures” which provided a “strong basis in evidence” for believing that a 55 percent African-American threshold was necessary. This marks the first racial gerrymandering case in which the Supreme Court has upheld a challenged district under strict scrutiny. That said, the prospective impact of Bethune-Hill is limited. That is because the Supreme Court’s 2013 decision in Shelby County v. Holder invalidated the VRA’s formula for determining which jurisdictions are covered by Section 5, effectively ending preclearance in most places. The upshot of Shelby County is Section 5 cannot be used to justify racial targets (like Virginia’s 55 percent black target) in the future.

The more significant opinion of last term is Cooper v. Harris. That case arose from a constitutional challenge to the very same North Carolina districts that were at issue in Shaw v. Reno, the original racial gerrymandering decision. As in the Alabama and Virginia cases, the central claim was that the Republican line-drawers packed African-Americans into these districts in a manner that the VRA does not require.

The Supreme Court in Cooper v. Harris was unanimous in concluding that one of the districts (the 1st District) violates the Constitution. Uncontested evidence showed that mapmakers had established a 50 percent-plus racial target, thus making race the predominant factor. The more difficult question was whether line-drawers had a “strong basis in evidence” for believing that the district was required to comply with Section 2 of the VRA. Section 2 prohibits voting practices that result in denial or abridgement of the right to vote on account of race. In some circumstances, it requires states to draw districts that will give racial minorities the opportunity to elect their candidates of choice. Under the Supreme Court’s landmark 1986 decision in Thornburg v. Gingles, however, there are certain preconditions for making a claim under Section 2. One of them is that whites vote “sufficiently as a bloc” to usually defeat minority candidates.

The record in Cooper showed that African Americans’ preferred candidates had consistently won, receiving up to 70 percent of the district vote, even though blacks made up less than a majority of the district. In these circumstances, there was no good reason to believe that a majority-black district was necessary to comply with Section 2.

The Court was divided on the other North Carolina congressional district (the 12th Congressional District), but a five-justice majority concluded that it too was unconstitutional. The central question was whether race rather than politics was the “predominant factor” in drawing the district’s lines. North Carolina argued that its main goal was political—specifically, to advantage Republicans, but Justice Elena Kagan’s majority opinion upheld the lower court’s finding that race was the predominant factor. Particularly “dramatic” was the testimony of former U.S. Representative Mel Watt, who had represented the district for two decades. Watt testified that one of the mapmakers told him that their goal was “to ramp the minority percentage up to over 50 percent.” Given the direct evidence of a predominant racial purpose, there was no need for plaintiffs to offer an alternative plan that would achieve the legislature’s stated political objectives with greater racial balance. (Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Anthony Kennedy, dissented on this point.)

The Next Generation. Taken together, Bethune-Hill and Cooper v. Harris limit states’ use of racial targets when drawing district lines. These decisions are likely to have a big impact on the next round of redistricting, especially in states where Republicans hold the pen. To be sure, they do not impose a flat prohibition on considering race when drawing district lines. But they do make it more difficult for states to use race—more specifically, compliance with Section 2 of the VRA—as a pretext for achieving partisan goals. That is true for two distinct reasons.

First, these cases make is easier to show that race predominated in drawing district lines. Cooper v. Harris is especially significant, because it suggests that predetermined racial targets will trigger strict scrutiny. As a result, states are likely to avoid articulating such targets in the next cycle. To see why, it is helpful to view the redistricting process from the perspective of line-drawers, usually state legislators. The last thing that they want is to spend months crafting a plan, only to have it overturned in court years down the road. Not only will such an outcome require legislators to go through the whole redistricting process all over again, but it will upset settled expectations of candidates—often the line-drawers themselves. For that reason, legislators should avoid setting explicit racial targets, like saying that they are aiming for districts that are more than 50 percent black. Surely their lawyers, if they are worth their salt, will advise them to avoid such racial targets, lest they open the door to an argument that race was the predominant factor.

The second way in which Cooper limits race-conscious redistricting concerns Section 2 of the VRA. Even if race was the predominant factor, a district will be upheld if it is narrowly tailored to serve a compelling interest. That generally means showing that there is a “strong basis in evidence” for believing that its lines were needed to comply with the VRA. Bethune-Hill shows that strict scrutiny is not always fatal in fact, but its significance is limited by Shelby County’s effective termination of Section 5 preclearance. The Section 5-based justification that Virginia successfully relied upon to justify its racial target—albeit for just one district—will not be available in the next redistricting cycle.

States seeking to justify racial targets will thus be left to rely on Section 2. And Cooper makes it harder for them to do so successfully. Recall that the Court unanimously struck down one of North Carolina’s challenged congressional districts. Given the district’s history of crossover voting in that district, with many whites voting for black-preferred candidates, there was no good reason to believe that Section 2 required a majority-black district. That part of the decision signals that talismanic invocation of the VRA cannot be used to justify racial targets. Where a large number of whites have voted for minority-preferred candidates, the Court is not likely to uphold a 50 percent racial target.

This year’s racial gerrymandering decisions could place some existing majority-minority districts in legal jeopardy. An example is Ohio’s 11th Congressional District. Although the seat is held by Representative Marcia Fudge (D-Ohio), I call it the “LeBron James District” because it stretches from Cleveland to Akron. That district was drawn to be just over 50 percent African-American. Yet there is substantial white crossover voting in that part of Ohio, which has allowed Rep. Fudge to win by overwhelming margins of around 80 percent in the last two elections. No one can argue with a straight face that a majority-black district is required for African Americans to elect their preferred candidate. Thus, if the state were to set a 50-percent target for the 11th District in the next redistricting cycle, it could face—and would probably lose—a racial gerrymandering challenge.

All of this is good news for Democrats, or at least the Democratic Party writ large. In the next cycle, it will be more difficult for Republican-controlled legislatures to pack African-Americans and Latinos into a few hyper-concentrated Democratic districts, and thereby give Republicans a solid majority in the rest. In other words, Republicans will have a hard time justifying partisan gerrymanders by claiming “the Voting Rights Act made us do it.” At the same time, the Court’s recent decisions are sure to provoke anxiety on the part of some legislators elected from majority-minority districts. A state that sets an explicit racial target will be setting itself up for yet another round of racial gerrymandering litigation.

Daniel P. Tokaji is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University, Moritz College of Law. An expert on the law of elections and democracy, Professor Tokaji teaches courses on election law and constitutional law, and he has also authored various articles and book chapters on voting rights and democracy.

This essay is part of an eight-part series, entitled The Supreme Court’s 2017 Regulatory Term.