North Carolina is now zero for three before the U.S. Supreme Court this year. Monday, the high court upheld a ruling which found that 28 state legislative districts are illegal racial gerrymanders.
The Supreme Court had already struck down North Carolina's voter ID law and found two congressional districts were also racial gerrymanders. After those earlier rulings the Republican leaders of the General Assembly criticized the court. This time there's a surprising claim of victory by those who helped draw the illegal districts.
There's an acronym political map makers know well. BVAP. The black voting age population, measured as a percentage, in any political district.
That number is contentious and key to this case. Contentious because BVAP is sometimes a consideration mandated by the Voting Rights Act. It seeks to ensure African-Americans are represented in legislative bodies.
When the Republican leaders of the general assembly redrew all 120 state House and 50 state Senate districts back in 2011, Anita Earls and others noticed a problem. In 19 state House districts and nine Senate districts the BVAP jumped from somewhere in the 40 percent range to over 50 percent. "We went to the General Assembly at the public hearings and objected to the districts," explains Earls, the executive director of the Southern Coalition for Social Justice. She told lawmakers these districts "went beyond what the Voting Rights Act requires."
Those calls were ignored.
So Earls and her group found plaintiffs in all 28 districts and represented them in court. "It's taken us really six years but finally the Supreme Court has found that our view of the law is correct."
The decision was a short one (starts on page 10). There were no oral arguments before the high court. The justices simply agreed with part of an August 2016 decision by a panel of federal judges in the middle district of North Carolina.
There, lawyers representing the state argued that race was still a polarizing factor in voting. The only way to ensure black voters are represented is to pack them into majority-minority statehouse districts.
This was true in the old south. But, the plaintiffs countered, not as much now. And they called on Harold Cogdell to help prove their point. "My testimony was rather brief. I doubt I was on the witness stand more than 20 or 30 minutes." Cogdell is a lawyer. He also served on the Charlotte City Council from 2001 to 2003 and the Mecklenburg County Commission from 2008 to 2012.
Five of the 28 racial gerrymander districts are here in Mecklenburg. Cogdell told the court race based districts are simply no longer needed. "We have seen African-American candidates in Mecklenburg County in recent years realize more success than traditionally had been occurring in Mecklenburg County. In particular in at-large races where there were no districts that were carved out that were majority minority."
Both the lower federal court and now the U.S. Supreme Court agree on this point. But they disagree on another.
In their 2016 decision, the lower court ordered new state legislative maps be drawn by March of this year, with special elections to follow. The Supreme Court said, not so fast. Their opinion kicked any consideration of a special election back to the lower court.
Rather than undertaking such an analysis in this case, the District Court addressed the balance of equities in only the most cursory fashion. As noted above, the court simply announced that “[w]hile special elections have costs,” those unspecified costs “pale in comparison” to the prospect that citizens will be “represented by legislators elected pursuant to a racial gerrymander.” App. to Juris. Statement 200. That minimal reasoning would appear to justify a special election in every racial-gerrymandering case—a result clearly at odds with our demand for careful case-specific analysis. For that reason, we cannot have confidence that the court adequately grappled with the interests on both sides of the remedial question before us. And because the District Court’s discretion “was barely exercised here,” its order provides no meaningful basis for even deferential review. Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 27 (2008).
This was enough for two key Republican lawmakers to claim victory.
Senator Ralph Hise and Rep. David Lewis issued a joint statement:
“We are encouraged the Supreme Court unanimously rejected the lower court’s politically-motivated attempt to force a special legislative election in 2017 and its efforts to ‘suspend provisions of the North Carolina Constitution,’ ignore voters’ constitutional right to elect representatives to two-year terms, and effectively nullify their votes from 2016.”
But it's important to note they never mention the fact these 28 districts were ruled illegal. As to the unanimous rejection of any chance of a special election, that is a bit of a stretch says the group representing the plaintiffs. "It's pretty stunning that you could read this decision that says lower court go back and re-examine as an absolute statement that there will be no special election," says Anita Earls. Her group and the original plaintiffs plan to ask the court to hold a special election as soon as possible.
If we step back from the idea of when an election will be held, this year or next year as planned, one thing is clear. This ruling means state lawmakers will have to redraw these districts. Democrat Joel Ford hopes the process is not rushed. "I think it's important for us to take the time to get the districts to be drawn in the best and most diverse manner in which we can get those done."
Ford is currently running to be Charlotte's mayor. But he is also a state senator representing a district that is an illegal racial gerrymander.
Ford notes an interesting footnote to this case, there are currently more African-American's serving in the General Assembly than ever before. This decision he says could decrease that number, "unless we have African-American candidates who can appeal to broader groups of citizens."
TB: "And as an African-American yourself sir, are you OK with that?"
FORD: "I am more than OK with that and I think that it is healthy that we have a balanced, diverse, constituency group that we have to appeal to."
It's a view echoed by Democratic Governor Roy Cooper who released a statement saying in part, "The people should be able to choose their representatives instead of the representatives being able to choose the people in lopsided partisan districts."