May 29, 2017
Cooper v Harris: Striking Down Racial Gerrymandering in North Carolina
There is a continuing saga in many states in which the party in control of redistricting–mostly Republicans these days–draws lines favorable to its candidates, and the other party challenges them. On May 22nd, the Supreme Court handed a victory to the Democrats, by affirming a three-judge district court decision that ruled that two North Carolina congressional districts were created in 2011 with racial considerations as the “predominant factor,” and hence violated the Equal Protection Clause of the Constitution.1 The majority opinion, written by Justice Kagan, and joined by Justices Thomas, Ginsburg, Breyer and Sotomayor, concluded that the finding of racial predominance by the trial court was not clearly erroneous and that there was no legitimate reason to support the choices made by the legislature. Justice Alito’s opinion, in which Chief Justice Roberts and Justice Kennedy joined, agreed that racial predominance had been proven for District 1, but not for District 12.2 Justice Gorsuch, who was not on the Court when the case was argued, did not participate.
The decision in Cooper only concluded that the lines for two Districts were racially motivated, but the remedy will have to make changes in other districts to correct the imbalance. Indeed, the State had to move Black voters from four different Districts into District 12, making an already safe Democratic district even safer. Thus, the impact of the decision is likely to cause a major shift in the North Carolina congressional delegation, assuming that the Governor, who is now a Democrat, and the Legislature, which is still in Republican control, can reach an agreement. If they do not, the three-judge court will have to step in.
There was a lengthy bench trial and a full opinion below in which significant factual findings, based in part on credibility determinations, led to the racial predominance conclusion.3 As a result, the State could prevail only if it could persuade the Supreme Court that the findings were clearly erroneous. Reading Justice Kagan’s opinion, in which she marshaled the evidence that supported the ruling below, one could well conclude that she would have reached the same conclusion, but she made it clear that she did not have to go that far because of the clearly erroneous standard. By contrast, Justice Alito looked at the same evidence and reached the opposite conclusion for District 12.4
The difference in how the two opinions viewed the record is arguably narrower than it might seem because the principal defense of the State was that it admitted moving Black voters into District 12, but claimed that it did so for political, not racial, reasons. Political gerrymandering has been recognized by the Court as being constitutionally suspect, but in Vieth v. Jubelirer,5 a majority of the Court concluded that the lack of an appropriate remedy made the claims non-justiciable political questions. Thus, if the State had proven that a political motivation was the basis for the lines that it drew, it would have prevailed. The difficult question is what to do when the motives are mixed, or overlap more precisely because a vast majority of Black voters support Democrats, thus moving Black voters will coincide almost precisely with a political desire to help Republicans.
On the one hand, there can be little question that the 2011 congressional redistricting accomplished its purpose: in the 2010 election (which was a favorable year for Republicans), the Democrats managed to capture seven seats, and the Republicans six, whereas in 2016, the same State, with redrawn districts, elected ten Republicans and only three Democrats. From the Republican perspective, they did not care how they got that result, and moving Black voters just happened to be the easiest way to get there. On the other hand, the majority did not contend that politics was irrelevant, but seemed to conclude that if racial means were used to achieve political ends, that was sufficient to violate the Equal Protection Clause. In this case, there was some evidence that suggested that race, and not just politics, was a factor in some of the decisions, but in the next case–and there will surely be more because this is the fifth case challenging District 12–the legislature will surely be careful to use politics as the exclusive basis for the lines drawn. It may be that Cooper will become a new front by which to attack political gerrymandering, or at least an encouragement to re-examine whether political gerrymandering should be viewed as a political question.
One aspect of this issue deeply divided the majority and the dissent: the relevance of the decision of the plaintiffs not to offer an alternate map to the one produced by the Legislature. The majority refused to impose that as an additional requirement once it had found racial predominance. By contrast, the dissent would require that challengers must show how the Legislature’s goals can be achieved without drawing lines based on race. That the legal issue has been resolved against a mandatory submission of an alternative does not mean that alternative maps will not be offered in future cases. Indeed, if for no other reason than to respond to the adage that “you can’t beat something with nothing,” challengers will almost always offer a “better” map, which they will then use at the relief stage, if the matter gets that far.
One interesting issue is how expansive the map has to be. For example, with respect to District 12, the 2010 census did not necessitate any changes in its boundaries to still meet the one-person one voter standard. Thus, if a plaintiff must only show an alternative for the District being challenged, the plaintiffs could have met that requirement here by simply saying that the boundaries should have remained the same. In response, the legislature would certainly say, “We want to make the districts more favorable to our party, and we can’t do that by keeping this district as is.” One answer may be: “It’s one thing to say states can’t take politics into account when they have to re-draw lines because of census-mandated requirements, but not when you have no reason to change boundaries except to achieve political gains.” Of course, there will not be many cases like District 12, with no changes needed, but perhaps that approach could be extended to require that any changes should be minimal and not involve exchanges of large numbers of voters, just for political purposes. The likely response to the “keep the current lines to the extent possible” would be, “we are only correcting the imbalance that the other party imposed when it had control.” In other words, it may all come back to how long the Court can hold on to the refusal to deal with partisan gerrymandering directly.
One thing seems certain: efforts by both political parties to create favorable gerrymanders, which the other party will challenge, will continue until the Court finds a way to eliminate at least the most outrageous. Additional cases are pending in North Carolina and a Wisconsin case, in which a new theory to attack political gerrymandering was upheld, is pending in the High Court, but no action on it is likely before fall.
Dean Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law, The George Washington University Law School, where he teaches civil procedure and constitutional law. Dean Morrison is an experienced Supreme Court advocate, having argued 20 cases before the Court. He frequently does moot courts for advocates and files amicus briefs in the Supreme and other courts. He is a former President of the American Academy of Appellate Lawyers and is a regular High Court commenter for On the Docket and other publications.
- Cooper v. Harris, No. 15–1262, slip op. (U.S. May 22, 2017).
- See id. at 46 (Alito, J., concurring in the judgment in part and dissenting in part).
- See Harris v. McCrory, No. 1:13-cv-949 (M.D.N.C. June 2, 2016).
- See Cooper, slip op. at 46.
- 541 U.S. 267 (2004).
Recommended Citation Alan Morrison, Response, Cooper v. Harris: Striking Down Racial Gerrymandering in North Carolina, Geo. Wash. L. Rev. On the Docket (May 30, 2017), http://www.gwlr.org/cooper-v-harris/.