Did North Carolina’s 2011 congressional redistricting plan improperly use race as the primary motivating factor in creating the first and twelfth voting districts?
The Court must consider whether the proposed redistricting plans to North Carolina’s Congressional District 1 and Congressional District 12 constitute unconstitutional gerrymandering. Appellants Patrick McCrory, Governor of North Carolina, and A. Grant Whitney, Jr., Chairman of the North Carolina State Board of Elections, contend that the redistricting plans were not drawn based on race but rather were politically motivated. Appellees David Harris and Christine Bowser claim that direct and circumstantial evidence demonstrates that race was the predominant factor in the redrawing of district lines. The case is significant because it will address whether complying with the Voting Rights Act satisfies a compelling government interest and whether gerrymandering challengers must provide an alternative map when they present direct and circumstantial evidence of race-based redistricting.
Questions as Framed for the Court by the Parties
In 2011, the North Carolina General Assembly drew a new congressional redistricting map to ensure that North Carolina’s congressional districts would comply with the one-person, one-vote requirement in the wake of the 2010 census. Shortly thereafter, several organizations brought suit in state court challenging two of those districts as unconstitutional racial gerrymanders. The state court rejected their claims in full, concluding that the General Assembly drew one district based on political, not racial, considerations, and that it drew the other in a manner narrowly tailored to achieve the State’s compelling interest in complying with the Voting Rights Act. Dissatisfied with that result, two members of one of the plaintiff organizations brought this suit challenging the same two districts on the same grounds. The parties even submitted the state court record in full. Without even acknowledging the direct conflict with the state court case that its decision produced, the district court reached precisely the opposite conclusion.
The question presented is:
Whether the First and Twelfth Districts of North Carolina’s 2011 congressional redistricting plan are unconstitutional racial gerrymanders.
North Carolina voters have repeatedly challenged two North Carolina voting districts in a redistricting plan intended to comply with the Voting Rights Act of 1965 (“VRA”). The VRA aims to eliminate racial discrimination in voting by providing every voter with an equal opportunity to elect a candidate of his or her choice. See Harris v. McCrory, No. 1:13-cv-949, at 5 (M.D.N.C. Feb. 5, 2016). The lower court found that plans to redraw Congressional District 1 (“CD1”) and Congressional District 12 (“CD12”) were unconstitutional racial gerrymanders. See id. at 63.
This will be the fifth time the Supreme Court will consider racial gerrymandering challenges to CD1 and CD12. See Brief for Appellants, Patrick McCrory, North Carolina State Board of Elections, and A. Grant Whitney, Jr. at 5. In Shaw v. Reno (“Shaw I”), 509 U.S. 630 (1993), North Carolina voters argued the unique shape of each district demonstrated that racial gerrymandering produced CD1 and CD12; the Court agreed and remanded the case to the lower court to determine if the redrawing of the two districts was a narrowly tailored interest that furthered the state’s interest in complying with the VRA. See Harris at 73; Shaw v. Reno ("Shaw I"), 509 U.S. 630, 658 (1993). The lower court held that CD1 and CD12 were drawn in a way that properly served the state’s compelling interest in avoiding liability under the VRA. Shaw v. Hunt, 861 F.Supp. 408, 473–75 (E.D.N.C. 1994). North Carolina voters sued in Shaw v. Hunt (“Shaw II”), 517 U.S. 899 (1996), alleging again that the irregular shape of CD1 and CD12 indicated they were racial gerrymanders; the Court reversed, holding that the voters lacked standing to challenge the lawfulness of CD1 because none of them lived in CD1 and that the VRA did not require CD12 to serve as another majority-minority district. Shaw v. Hunt ("Shaw II"), 517 U.S. 899, 904, 917 (1996). A majority-minority district is one in which the majority of constituents in the district are racial minorities.
In 1997, North Carolina’s General Assembly issued a new districting plan that included CD1 as the sole majority-minority district; CD12 preserved its irregular shape, but was no longer a majority-minority district. See Hunt v. Cromartie (“Cromartie I”), 526 U.S. 541, 544 (1999). The Department of Justice (“DOJ”) found that CD1 complied with the VRA, but voters again sued in Hunt v. Cromartie (“Cromartie I”), 526 U.S. 541 (1999), arguing that CD12 resulted from racial gerrymandering. See id. The Court reversed a grant of summary judgment for the voters because there was a factual question as to whether or not race motivated the legislature in creating CD12. Id. at 553. In Easley v. Cromartie (“Cromartie II”), 532 U.S. 234(2001), the Court found that politics, and not race, motivated the legislature in deciding the shape of CD12. See Easley v. Cromartie (“Cromartie II”), 532 U.S. 234 257–58 (2001).
After the 2010 census, the General Assembly again had to adjust the state’s voting districts to account for population growth in certain parts of the state. See Harris at 607. The General Assembly sought to avoid liability under the VRA by establishing two majority-Black Voting Age Population (“BVAP”) districts, moving blacks from non-majority-minority districts to CD1 and CD12. See id. at 607–08. Consequently, the black voting age population in CD1 increased from 47.76% to 52.65% and from 43.77% to 50.66% in CD12. Id. at 609. The General Assembly submitted its redistricting plan to the DOJ for preclearance in compliance with the VRA. Id. The DOJ pre-cleared the districts on November 1, 2011, in time for the 2012 election. Id.
Not long after the districts were precleared, North Carolina voters sued in North Carolina state court alleging that CD1 and CD12 were a product of racial gerrymandering in violation of the Equal Protection Clause under the Fourteenth Amendment. See Harris at 609. North Carolina’s Supreme Court held that the districts did not violate the VRA because politics primarily motivated the drawing of CD1 and CD12. See id. After the North Carolina state court decision, North Carolina voters sued in federal district court arguing that North Carolina used the need for compliance under the VRA as pretext for actually packing black voters into CD1 and CD12 in an effort to reduce minority voters’ influence in other districts. See id. The court held that unconstitutional gerrymandering produced CD1 and CD12. Id. at 627. North Carolina now appeals the decision.
WAS THE GENERAL ASSEMBLY’S REDISTRICTING PLAN RACIALLY OR POLITICALLY MOTIVATED?
Patrick McCrory and A. Grant Whitney, Jr. argue that the General Assembly sought to maximize political opportunities for the Republican Party with CD12, and acknowledge that the General Assembly intentionally drew CD1 as a majority-minority district. See id. at 24, 44. Specifically, McCrory and Whitney argue that there is overwhelming evidence that the General Assembly drew CD12’s lines for political reasons. See id. at 28. They claim that, instead of the traditional “unpacking” of voters, the General Assembly tried to concentrate likely Democratic Party voters in certain districts to make others more competitive for the Republican Party. See id. Regarding CD1, McCrory and Whitney argue that the redistricting plans satisfy the factors established by the Court in Thornburg v. Gingles, 478 U.S. 30 (1986), in order to make a successful voter dilution claim under Section II of the Voting Rights Act of 1965 (“VRA”). See id. at 52. The Gingles test is satisfied if: (1) a minority group is “sufficiently large and geographically compact to constitute a majority in a single member district,” (2) the group is “politically cohesive,” and (3) the majority votes “as a bloc.” See id. McCrory and Whitney contend that, first, CD1 was a majority-minority district in the past and, by 2001, it had a black voting-age population of 48.63% and a black registered-voter percentage of 50.66%. Id. In support of the second and third factors, McCrory and Whitney claim that the General Assembly had strong evidence of racially polarized voting and majority bloc voting. Id. McCrory and Whitney cite past federal court decisions affecting the district, two expert reports, and testimony from community members in support of their claims. See id. at 52–53. Furthermore, McCrory and Whitney argue that the district court erred by focusing on whether earlier versions of the CD1 were consistent with the VRA, rather than analyzing whether the State had good reasons for thinking that drawing CD1 as a majority-minority district would avoid future VRA liability. See id. at 57. Thus, McCrory and Whitney conclude that race was not a predominant factor in the 2011 redistricting of either CD1 or CD12. Id. at 17–18.
By contrast, David Harris and Christine Bowser argue that both direct and circumstantial evidence demonstrates that racial factors influenced the General Assembly’s redistricting plans for CD1 and CD12. See Brief for Appellees, David Harris & Christine Bowser at 4. Regarding CD1, Harris and Bowser cite testimony from its map drawer that the plan’s architects instructed him to focus primarily on drawing CD1 as a majority black voting-age population district. See id. at 8. Furthermore, Harris and Bowser point to the non-compactness of CD1, the splitting of county lines, and the assignment of black voters to CD1 over adjoining districts as evidence that the General Assembly hoped to concentrate a precise racial percentage in CD1. See id. at 13–14. Harris and Bowser also refute the necessity of drawing CD12 as a minority-majority district. See id. at 22. Similar to their argument regarding CD1, Harris and Bowser argue that CD12 is a non-compact district and argue that McCrory and Whitney’s claim that politics, not race, motivated their behavior is an ad hoc rationalization. See id. at 23, 25. Harris and Bowser also refute the credibility of the appellants’ witness, Dr. Hofeller, by citing inconsistencies in his expert reports. See id. at 29. Instead, Harris and Bowser offer testimony from Dr. Ansolabehere that conveys that black registration is a better indicator for voting behavior than the black voting-age population. See id.
DOES CD1 SATISFY STRICT SCRUTINY?
The Court previously determined that, similar to other race-based classifications, race-based redistricting must satisfy strict scrutiny if it was a predominant factor in the legislature’s decision to locate or remove voters from specific districts. Brief for Appellees at 3. Strict scrutiny places the burden on the defendant to demonstrate that the predominant use of race was narrowly tailored to a compelling government interest. Id. at 36. Regarding CD1, McCrory and Whitney argue that although the Court has not held that VRA compliance is a compelling government interest, the appellants need only to prove that it had “good reasons” or a “strong basis of evidence” to consider race as it did. See Brief for Appellants at 48. Accordingly, they argue that some flexibility and deference should be granted when states engage in good faith efforts to comply with the VRA so that they are not put in an unreasonable position between complying with the VRA and the Constitution. See id.
Harris and Bowser argue that the General Assembly’s use of race in CD1 was not narrowly tailored to a compelling government interest. Brief for Appellees at 36. Rather, Harris and Bowser point to the third factor in the Gingles test to argue that the General Assembly was not facing liability under the VRA. See id. The third Gingles factor requires a defendant to demonstrate that the white majority was voting in a bloc to defeat minority-preferred candidates. Id. at 37. Harris and Bowser argue that McCrory and Whitney overlooked minority candidates’ past success at winning elections in the district. See id. at 38–39. Thus, the district did not meet the Gingles condition of bloc voting that would warrant creating a majority-minority district. See id. at 36.
DOES CROMARTIE II REQUIRE AN ALTERNATIVE PLAN?
McCrory and Whitney assert that the district court’s decision should be reversed because Harris and Bowser failed to produce an alternative map that achieves the legislature’s goals while also improving racial balance. See Brief for Appellants at 31. Regardless of any direct or circumstantial evidence or racial predominance, McCrory and Whitney argue that according to Cromartie II, all gerrymandering plaintiffs must offer an alternative plan where majority-minority districts are considered and where racial make-up strongly correlates with political affiliation in order to satisfy the demanding burden of proof. See id. at 31–32. The district court did not require the Harris and Bowser to submit an alternative map, which McCrory and Whitney argue was error. Id.
Harris and Bowser disagree and argue that an alternative plan is not necessary where other evidence strongly conveys racial predominance. Brief for Appellees at 31. They contend that McCrory and Whitney mistakenly analogize this case to Cromartie II, where the plaintiffs suffered from evidentiary issues. See id. at 31. Appellees argue that when a court has compelling direct and circumstantial evidence, as is the case here, an alternative plan is not necessary. See id. at 33.
DOES COLLATERAL ESTOPPEL BAR THE APPELLEE’S CLAIMS?
McCrory and Whitney argue that the federal suit should have been barred as a result of collateral estoppel. Brief for Appellants at 20. Collateral estoppel reduces repetitive litigation and produces comity between the federal and state courts because it prohibits litigation of a judgment on the merits by the same parties or their privies. See id. McCrory and Whitney contend that plaintiffs were privies in a previous state action that involved identical claims and that to allow plaintiffs an opportunity to re-litigate their claims in a federal court would disrespect the sovereignty of the states. See id. at 21. McCrory and Whitney also argue that, at a minimum, a district court should grant deference to findings of a state court that are directly on point even if a federal suit is not precluded by law. See id. at 22.
Harris and Bowser reject McCrory and Whitney’s claims that the suit should be barred by collateral estoppel because they fail to mention that a three-judge panel (“the Panel”) previously denied their motion for summary judgment on these grounds. Brief for Appellees at 51. The Panel ruled that there were factual disputes and unanswered issues of state law, which prohibited dismissal. Id. Harris and Bowser contend that McCrory and Whitney subsequently abandoned their collateral estoppel argument, and thus have not preserved the issue for appeal. See id. In addition, Harris and Bowser note that, even if the issue had been preserved, Harris and Bowser testified that they were not members of the plaintiff’s organization in the state suit, nor did they authorize any party to that case to act on their behalf, thereby permitting the suit to move forward. See id. at 52.
WHAT ROLE SHOULD RACE PLAY IN DRAWING VOTING DISTRICTS?
The Southeastern Legal Foundation (“SLF”), in support of McCrory and Whitney, argues that courts should favor redistricting plans that truly limit racial considerations in drawing voting districts. See Brief of Amicus Curiae Southeastern Legal Foundation ("SLF"), in Support of Appellants at 12. SLF argues that, to achieve the primary goal of the VRA, no one group should have a greater opportunity to elect their preferred candidate of choice than any other group. See id. at 7. According to SLF, courts should discourage majority-minority districts because they could give a minority group a greater chance of electing their candidate over a non-minority group. See id. at 12. SLF contends that the Court should uphold its decision in Bartlett v. Strickland, 556 U.S. 1 (2009), which provides an alternative to majority-minority districts that would reduce the role race plays in drawing voting districts. See id. SLF maintains that this alternative would limit race-based considerations in drawing districts because districts would be drawn based on where people live. See id. at 15–16. By reducing the use of race-based considerations, SLF maintains, state voting districts will encourage greater discussions and connections between racial groups. See id. at 16. SLF asserts that drawing districts based solely on where people reside means that states would never even have to consider race at all, achieving the main goal of the VRA and avoiding cases such as this one entirely. See id.
The United States, in support of Harris and Bowser, argues that race can be one factor used when drawing voting districts, but it cannot be the “predominant factor.” See Brief of Amicus Curiae the United States, in Support of Appellees at 15. The United States contends that when race is considered along with many other factors, the district does not necessarily violate the VRA because race may have played a very small role in drawing voting districts. See id. Further, the United States claims that the use of race may even be necessary to achieve the state’s goal of avoiding liability under the VRA. See id. at 21. The United States argues that if courts allow states to consider race in certain situations involving the creation of voting districts, then states will have enough breathing room to comply with the VRA and not violate the Equal Protection Clause. See id.
WHEN MAY USE OF THE VRA FURTHER ONE POLITICAL PARTY OVER ANOTHER?
In support of McCrory and Whitney, SLF argues that majority-minority districts allow the dominant political party in that district to use the VRA to serve its interests. Brief of SLF at 20. However, SLF points out that the VRA says nothing about political affiliation and is instead meant to address racial discrimination. See id. at 22. According to SLF, if the Court holds in favor of Harris and Bowser, it will encourage the use of majority-minority districts in a way that favors the minority’s preferred party over the non-minority’s party. See id. at 19. SLF maintains that such districts require redistricting officials to draw districts that benefit minority communities over others out of fear of being sued by the minority group. See id. SLF argues that this would lead to districts consisting of voters who are more likely to vote for the minority group’s preferred party. See id. at 19–20.
The Campaign Legal Center et al. (“CLC”), in support of Harris and Bowser, suggests that courts should be skeptical when a state’s rationale for a district is based on political party affiliation because race and political party are closely connected. See Brief of Amici Curiae the Campaign Legal Center et al., in Support of Appellees at 14. According to the CLC, should the Court find for the government, the Court will allow states to use race as a substitute for political affiliation. See id. The CLC maintains that using race to achieve partisan goals only perpetuates racial stereotypes because it requires states to assume that members of the same racial group share the same political affiliation and values. See id. at 16.
- Maggie Ybarra, U.S. Supreme Court to Review N.C. Redistricting, Charlotte Observer (June 27, 2016)
- Chris Calabrese, Supreme Court to Hear Racial Gerrymandering Cases, Constitution Daily Blog (October 13, 2016)