US Supreme Court Refines Equal Protection Analysis in Redistricting Cases

North Carolina's congressional districts have once again provided fodder for refinement of the complex intersection between the Fourteenth Amendment’s Equal Protection Clause and Section 2 of the Voting Rights Act.

On May 22, 2017, the U.S. Supreme Court issued its opinion in Cooper v. Harris, 581 U.S. ___, No. 15-1262 (May 22, 2017), holding that North Carolina violated the Equal Protection Clause when it redrew two performing African American cross-over districts to be African American majority districts, allegedly in service to Section 5 of the Voting Rights Act and to avoid liability under Section 2 of the Voting Rights Act. The Court acknowledged that potential Section 2 liability can serve as a compelling governmental interest capable of surviving strict scrutiny to justify a race-based redistricting scheme. However, the Court refined its previous pronouncements on this point by explaining the type of evidentiary proof necessary to invoke Section 2 as a compelling interest. In her majority opinion, Justice Kagan rejected North Carolina’s invocation of potential Section 2 liability, because the record showed no evidence that the state actually investigated and reasonably concluded that a plaintiff would be able to prove a violation of Section 2 in the future district if it were drawn without a predominant focus on race.

During its post-2010 census redistricting, North Carolina redrew two districts that had a substantial, but not majority, African American voting age population into districts that were majority minority. Id. Slip op. at 6. With regard to District 1, which was underpopulated by 100,000, the government added the necessary population by creating "finger-like extension[s]" off of the existing district to capture the African American population and avoid the white population, thereby increasing the African American population from 48.6% to 52.7%. Id. As to District 12, the population did not require significant changes, but the government nonetheless swapped out 50,000 white people for 35,000 African American people, increasing the African American population from 43.8% to 50.7%. Id. The plaintiffs, one registered voter from District 1 and one registered voter from District 12, challenged the new configurations as impermissible racial gerrymanders under the Equal Protection clause of the Fourteenth Amendment. Id.

The Court reaffirmed that an inquiry into allegedly impermissible race-based districting requires a two-step analysis. Id. at 2. First, the plaintiff must show that race was the predominant factor considered in the inclusion or exclusion of people in the district. Id. Second, where the government’s purported compelling interest is compliance with Section 2, the plaintiff must prove that the government lacked a "good reason" or a "strong basis in evidence" to believe that a district drawn in the absence of predominant racial considerations would be invalidated under the three Gingles factors that serve as threshold proof requirements for a Section 2 claim: (1) the minority population is significantly large and compact to form a majority in a reasonably shaped district; (2) the minority group is politically cohesive; and (3) the majority population votes sufficiently as a bloc to usually defeat the minority population's preferred candidate. Id. at 2-3.

Finding that the lower court did not commit clear error in judging the evidence regarding race as the predominant factor in North Carolina’s configuration of the new districts, the Court focused its analysis on whether North Carolina had "good reasons" or a "strong basis in evidence" to believe that meeting a racial majority threshold was necessary to comply with the Voting Rights Act. Id. at 11-12.

With regard to District 1, the Court concluded that North Carolina could not reasonably believe that absent a majority voting age African American population in the district, white voters would vote as a bloc to usually defeat the African American voters' candidate of choice. Id. at 14. The district had a long history of electing African American voters' candidates of choice despite the absence of an African American voting majority. Id. at 14-15. Moreover, there was no evidence in the record demonstrating that the state actually analyzed the potential electoral performance of a potential new district drawn without race as the predominant consideration. Instead, North Carolina defended its decision to require a majority African American voting age population in District 1 based on a belief that that the Court's prior decision in Bartlett v. Strickland, 556 U.S. 1 (2009) (plurality op.), mandated the drawing of majority-minority districts whenever possible. In Bartlett, the Court held that performing cross-over districts in which minority groups are able to elect their candidates of choice with the help of like-minded Anglo voters cannot satisfy the third Gingles factor. Id. at 16-17. Justice Kagan rejected the notion that Bartlett requires the drawing of majority minority districts, reasoning that the Court’s decision in that case established that there is no wrong and no remedy under Section 2 with respect to a performing cross-over district. As such, it was not reasonable for North Carolina to conclude that the Voting Rights Act required District 1 to be drawn as a majority African American district. Id. at 17.

With regard to District 12, North Carolina claimed that the changes were made to the District in pursuit of partisan goals, rather than racial ones. Id. at 18. The Court found no clear error in the lower court's holding that racial considerations predominated in the drawing of the district. Id. at 21. Thus, because North Carolina had not presented any "good reason" for race-based districting with regard to District 12, the Court did not analyze the application of Gingles to the district and upheld the lower court's determination that District 12 was drawn in violation of the Equal Protection Clause. Id. at 34.

The take-away from Cooper for governmental bodies tasked with redistricting is that reliance on compliance with the Voting Rights Act as a basis for the predominance of race in apportioning population requires a specific evaluation of each of the Gingles factors with regard to both the existing district and the proposed district were it drawn without race as the predominant factor. A default to the position that majority-minority districts must be created whenever possible will not survive strict scrutiny under Cooper. The decision further underscores that redistricting remains an extremely complex area of the law in which expert demographic and legal guidance are essential to ensuring compliance with both the Voting Rights Act and the Constitution.