Opinion

Suing To Win Elections

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In the current climate of open opposition to the electoral college by infuriated progressives, as well as the effort to undermine the election results by initiating voter recounts where there is no evidence of voter fraud, and together with numerous denunciations of the rise of populism, domestic and foreign, the Supreme Court is hearing two cases today about that most populist of all political acts: voting. Both cases involve attempts to undermine the redrawing of legislative districts by Republican-controlled state legislatures.

In 1962, the Supreme Court repudiated its prior decision in Colgrove v. Green (1946) about the non-justiciability of “political questions,” and handed down one of its most important landmark decisions in Baker v. Carr. Writing for the Court, Justice Brennan, ruled that the Court had jurisdiction under the Equal Protections Clause to entertain cases attacking redistricting plans drawn up by state legislatures. Two years later, the Court, having established itself as the overseer of elections, handed down the epic “one man, one vote” decision in Reynolds v. Sims and related cases, in which it decreed not only that federal voting districts for the House of Representatives must be drawn up on the basis of equal populations but also that both houses of state legislatures must be done in the same way. In doing so, the Court explicitly denied the right of states to have their state senates resemble the United States Senate, that is, be territorial not populist.

In subsequent cases, the Court extended its re-apportionment authority to include issues of race. And federal power over apportionment was vastly augmented by the Congressional passage of the Voting Rights Act of 1965, which added new federal supervisory power by the Department of Justice over elections and specifically over the issue of the dilution of black voting strength in certain named states, mostly in the South. Since then, the Supreme Court has had occasion to issue many constitutional and statutory decisions on the status of race in reapportionment plans drawn up by state legislatures.

Today, the law of the effect on race on reapportionment is hypersubtle and based on an inherent conflict. To satisfy the Voting Rights Act standard, race must considered in reapportionment plans — except when the constitutional standard of equal protection decrees that it cannot be considered. The constitutional standard is that no electoral voting district may be deliberately designed as a set-aside for either black or white voters. However, per the Voting Rights Act, race must be considered in reapportionment plans so as not to unfairly dilute black voting strength. Redrawing districts based on winning elections — “to the winners go the spoils” — is what legislative reapportionment is all about, but the reapportionment process must still take the effect on race into account. Political gerrymandering is normal and permissible. Racial gerrymandering is not.

In both cases before the Court today, the plaintiffs are seeking to nullify reapportionment plans drawn up by Republicans after that party had won control of state legislatures. In Bethune-Hill v. Virginia State Board of Elections, the Virginia legislature, newly under the control of the Republicans, drafted a new redistricting plan, as it was obliged to do after the 2010 Census. The plan was “pre-cleared” and declared free of discriminatory intent and effects by the United States Justice Department, as was required by the Voting Rights Act. In twelve of the state house districts, the legislature set a voting strength 55 percent black. The plaintiffs are arguing in the Supreme Court that the plan packed too many blacks in those districts, thereby reducing their voting strength in adjoining districts. The district court below concluded that the gerrymandering was political and therefore constitutional.

At issue in the North Carolina case, McCrory v. Harris, are two congressional districts, including one, the 12th District, that had been the subject of federal court cases four times before. That district has a notorious nation-wide reputation for being for its artificial, elongated, and serpentine shape. The then Democrat-controlled legislature created it in 1991 for the purpose of ensuring a Democrat winner and implied also a black winner. Non-competitive for Republicans ever since, it has had a black representative since 1991. Plaintiffs from the opposite side of the political spectrum attacked the district as a set aside for minority voters, but in 2001, the Supreme Court found that the configuration of the district had been drafted for political, not racial, reasons. With only minor changes, the district maintains the notorious shape that it has had since the Democrat legislature created it in 1991.

The North Carolina redistricting plan of 2011 not only received the approval of the Department of Justice but also was vindicated in an opinion by the North Carolina Supreme Court. Nevertheless, lawyers for the North Carolina legislature had to defend the plan in federal district court where they argued that the legislature had increased the percentage of Democratic voters in the district by five percent, that is, they argued that political gerrymandering had occurred. The plaintiffs argued that the five percent increase was for the purpose of confining too many black voters in the district, thereby diluting their influence in adjoining districts, that is, that racial gerrymandering had occurred. With the nearly complete overlap of Democrat and black voters, the two factors are obviously hard to differentiate. But the district court worked its way through that thicket and came down on the side of the plaintiffs.

It is difficult to imagine that anyone would think that the Obama Department of Justice was lax in attending to race when it cleared and approved both redistricting plans. But both of these suits are not really about race. They have the purpose of undoing the six-year tide of Republican “populist” electoral success in the House of Representatives and in state legislatures. And after the 2016 elections and the extreme reactions that it has caused, it seems almost certain that there is going to be an outbreak of lawsuits aimed at controlling the results of elections. And, in fact, that has already begun, for a federal district court in Wisconsin has gone a step further indeed by declaring that political gerrymandering is also unconstitutional.

Thomas Ascik is a North Carolina attorney.