On Monday the Supreme Court decided a case from North Carolina regarding redistricting that succeeded in making a complete mess of redistricting law and damaging the separation of powers. Fifty-five years ago, Justice Frankfurter, in Baker v. Carr, urged the Court not to enter into the “political thicket” of redistricting litigation. The Supreme Court’s decision in Cooper v. Harris takes the court beyond the thicket and into the woods. And these woods are particularly deep and dark and confusing, even for experts.
While ideological disagreements are commonplace on the Court, the liberal wing of the Supreme Court’s complete disregard for precedent regarding redistricting caused Justice Samuel Alito to write in dissent: “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.”
Keep in mind redistricting is done every 10 years to adjust the districts after the decennial census. So in 2017 the Supreme Court is weighing in on 2010 redistricting. The potential effect of this confusing decision on the 2020 cycle for state legislators and members of Congress cannot be overstated.
Put more charitably, the Harris opinion on one level is an attempt to balance the equal protection requirements of the Fourteenth Amendment and the intent of the Voting Rights Act (VRA) to allow minorities to elect candidates of their choice. But Cooper v. Harris ultimately decides that even if a legislature has redistricted based on partisan lines (as is common) and established majority-minority districts in conformity with the Voting Rights Act, a court can ignore all the evidence of that permissible strategy if it feels like it and decide that the redistricting plan was impermissibly based on race.
This is a difficult balance to strike and opens the door to endless litigation. More practically this lack of bright lines takes power to create legislative districts away from the people’s locally elected officials and gives it to judges appointed by national outsiders such as President Trump and Obama. As Justice Alito said, “But if a court mistakes a political gerrymander for a racial gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State’s elected representatives. This does violence to both the proper role of the Judiciary and the powers reserved to the States under the Constitution.”
While all of this is great for lawyers — they’ve just been handed what amounts to a “Full Employment Act” and can count on a lot of work in the coming years — it’s very bad for democracy and the rule of law.
There is a strong political motive behind this decision. Faced with Republican dominance at the legislative level (Republicans control at least 32 state legislatures), Democrats believe they will have a chance to fare better in court than at the hands of Republican legislators, some of who may be motivated by the egregious Democratic gerrymanders of the 80’s and 90’s. Democrats hope that an Obama-appointment heavy judiciary will give them more favorable districts. The political reality is that endless litigation is upon us.
The consequences of this tactic will be borne most heavily by minority voters. The VRA was intended to create a political environment in which minority voters could elect their preferred candidate of choice. In a sense historically, redistricting was a Jim Crow-type tool of Southern Democrats to prevent minorities from ever being elected by making sure there were not too many minorities in a district. Since the VRA’s passage, state legislatures have had to create districts with a sufficient minority population so that minority candidates could win. With the erosion of the interpretation of Section 2 of the that resulted in majority-minority districts, there could likely be more white Democrats elected but only at the expense of minority representation.
Democrats are turning their backs on the goal of minority representation and minority officeholders in order to achieve minimal gains against Republicans.
And if one is tempted think this isn’t about politics, remember that former Attorney General Eric Holder — who heads the National Democratic Redistricting Committee these days — officially lauded the decision Monday: “Today’s ruling sends a stark message to legislatures and governors around the country: Racial gerrymandering is illegal and will be struck down in a court of law.” But that has always been the law – what the Court confused in this case is how courts and legislatures are supposed to know what an impermissible racial gerrymander is.
Prior to Harris, lower courts had a binding Supreme Court precedent (Easley v. Cromartie or Cromartie II) regarding the evidence that must be presented for a redistricting challenge on the basis of race to go forward, but the Supreme Court said in Harris that the rule does not matter in some cases. Lower courts, and even state legislators writing the law, cannot know when the rule controls and when it does not. Directionless lower courts deciding on what are, in part, political questions such as redistricting should be a concern to all. Should a redistricting plan be determined by whether or not you draw a Democrat- or Republican-appointed judge?
This also shows the difference between conservative and liberal judges. Justice Thomas joined the majority decision because he believes the use of race should always trigger strict scrutiny (the highest standard for a law to pass when reviewed by a court). Justice Alito and others dissented, citing the clear precedent, rules, and evidence in this case that were ignored or dismissed by the majority.
Liberal justices, who in other cases seem to bend over backwards to side with minorities, in this case seem to be putting the interests of the Democratic party and its lawyers before judicial philosophy, the value of precedent, and the rule of law.
John Ryder is the co-chair of the Republican National Lawyers Association. He has handled election contests for county offices, state senates and U. S. Congress. He has represented Republicans in numerous redistricting cases since 1976, and has supervised and coordinated ballot integrity efforts in Tennessee for state party and campaigns.