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May 22, 2017; Asheville Citizen-Times

The U.S. Supreme Court ruled on May 22, 2017, that North Carolina unconstitutionally used race as a factor in drawing two Congressional districts. In a decision filled with unusual allies and issues that have had and will continue to have implications for Southern states, and possibly for all states, this decision split the Court in unexpected ways.

The ruling, written by Justice Elena Kagan, stated that North Carolina’s Republican-controlled legislature unlawfully relied on race when drawing two of the state’s congressional districts. This is in keeping with previous court decisions on redistricting in Virginia, Alabama, and North Carolina. (No, this is not North Carolina’s first time in this arena.) The lower federal courts as well as the Supreme Court have held that political considerations, up to a point, can be used in redistricting. But using racial considerations in drawing congressional and state legislative districts is unconstitutional, except insofar as it seeks to eliminate the potential for discrimination against minority voters, as envisioned in the 1965 Voting Rights Act.

The states in past cases contended their efforts were partisan attempts to protect their majorities, which the Supreme Court in the past has allowed, rather than attempts to diminish the impact of minority voters, which is forbidden. The drawing of state and congressional districts is a state function and in most states is led by whichever political party is in power. In the North Carolina case, the justices felt that too much emphasis was put on jamming African American voters into a limited number of districts, thus limiting their voting power and influence in other districts in the state.

What is somewhat unique in this case is that two North Carolina districts were in dispute, and that the Court’s decision in one was unanimous (8-0) in District 1, but in District 12 the Court split 5 to 3.

The three dissenters in the District 12 instance were Justices Roberts, Alito, and Kennedy. This is an interesting and unusual lineup. Justice Thomas, who is ordinarily a steadfast ally of Alito, actually has a record of ruling against racially gerrymandered voting districts because he’s skeptical of racial quotas in any context; this usually manifests in conservative viewpoints, like opposing affirmative action. As reported by Rick Hasen in the Election Law Blog,

Justice Alito, in his partial dissent for himself, the Chief Justice, and Justice Kennedy, is incensed at the decision, seeing it as inconsistent with the Court’s earlier decision in Easley v. Cromartie. He begins his dissent with: “A precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash. But that is what the Court does today in its decision regarding North Carolina’s 12th Congressional District: The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district.”


The controversy comes from the analysis of District 12. That district raises the question whether race or party predominated in redistricting. This is a particularly difficult question in the American South, because of “conjoined polarization,” race and party overlap to a great extent, so the question of which predominates is somewhat nonsensical.

Justice Kagan said the 1st district “produced boundaries amplifying divisions between blacks and whites,” while in the 12th, “race, not politics, accounted for the district’s reconfiguration.”

The issue of distinguishing between race and political party can be blurred in the Court’s findings in this and other cases of gerrymandering. The drawing of political districts by the party in power in a state brings the assumption that party will play a large role and be an accepted factor. A state has leeway in this area. But when race and party are “conjoined,” deciding as to what is or is not constitutional becomes a conundrum.

The Constitutional principle of “strict scrutiny” is raised when race is the factor under consideration in court cases. But this does not preclude litigation around gerrymandering that is strictly based on political party. Are race and party proxies for one another? More cases addressing both areas are making their way through the courts. The resulting decisions will have long term implications on voting rights.—Carole Levine