by Editorial Board, WSJ
The GOP can’t use race in redistricting but it also must use race.
State legislatures have been trying to figure out how much they can or should consider race when redrawing political districts and on Monday the Supreme Court increased the confusion. In a 5-3 decision, the four liberals plus Justice Clarence Thomas struck down North Carolina’s congressional map, ruling that the district lines were drawn in a way that disadvantaged black voters.
After the 2010 census, North Carolina Republicans drew up a congressional map that moved more black voters, who tend to vote Democratic, into two districts. Republicans said their motivation was partisan, with an eye toward improving Republican odds in other districts. Democrats challenged the law on grounds that by altering the concentration of black voters, the gerrymander violated the Constitution’s guarantee of equal protection.
In her opinion for the Court, Justice Elena Kagan wrote that race was the predominant factor in redrawing the maps and that “a State may not use race as the predominant factor in drawing district lines unless it has a compelling reason” (Cooper v. Harris).
Yet under the 1965 Voting Rights Act, state legislatures are required to take race into account when drawing district lines. When North Carolina drew its maps, it sought pre-clearance from the Obama Justice Department. In its application, the state noted that the increase of black voters in District 12 to 50.66% from 43.77% “maintains, and in fact increases, the African-American community’s ability to elect their candidate of choice in District 12.”
Democrats argue that those numbers are evidence of impermissible concentration of black voters. But the legal uncertainty has created a tightrope for state lawmakers, who must find a balance between impermissible black vote dilution and impermissible black vote concentration. If they fail to take race into account when redrawing districts, they can fall afoul of the 1965 Voting Rights Act. If they take race into account too much they fall afoul of the Equal Protection Clause of the Constitution.
In his dissent, Justice Samuel Alito notes that the problem is complicated by the fact that race and political affiliation are highly correlated, making it hard to tell why a redistricting decision was made. “If around 90% of African-American voters cast their ballots for the Democratic candidate, as they have in recent elections,” Justice Alito wrote, “a plan that packs Democratic voters will look very much like a plans [sic] that packs African-American voters.”
Justice Thomas’s vote with the liberals is an extension of his consistent and principled absolutism on issues of race. Once the state conceded it had used race, even benignly, Justice Thomas was out. “I think North Carolina’s concession that it created the district as a majority-black district is by itself sufficient to trigger strict scrutiny,” he wrote.
The opinion is also notable for the fact that it gets all the Court’s liberal justices on board with the argument that the use of race is always subject to strict scrutiny, not merely sometimes as they have argued in past cases. That could be tricky for liberals if a future case challenges Section 2 of the Voting Rights Act on grounds that it requires states to take race into account when redrawing their districts.
As Justice Thomas wrote in his magnificent 1994 opinion in Holder v. Hall, “few devices could be better designed to exacerbate racial tensions than the consciously segregated districting system currently being constructed in the name of the Voting Rights Act,” and “our drive to segregate political districts by race can only serve to deepen racial divisions by destroying any need for voters or candidates to build bridges between racial groups or to form voting coalitions.”
Meantime, the Court’s decision is most likely to guarantee more litigation by Democrats, who are happy to use the courts as a way to maximize the opportunities for Democratic candidates, and race as a sword for partisan purposes.