The scramble for what happens next in North Carolina’s 1st and 12th congressional districts is well underway now that a federal 3-judge panel has declared their Republican-drawn maps unconstitutional.
Unfortunately, this pattern of judicial ‘holds’ on North Carolina legislative and congressional maps is nothing that we haven’t experienced before.
In their 2-1 opinion released late Firday, the federal judges believed that the Republican General Assembly, in designing the maps in 2011, relied too heavily on the principle that the two majority-minority congressional districts had to be at least 50 percent plus one in black voting age population, or BVAP.
In his majority opinion, 4th Circuit Court of Appeals Judge Roger Gregory, a Bush appointee, declared that the use of the 50 percent plus one principle in drawing the 1st and 12th congressional districts created ‘racial classifications’ for voters based on their skin color. While race can be considered in the drawing of districts, along with many other factors, the court believes that race was the predominant factor in these districts, thus violating the 14th Amendment’s equal protection of the law clause.
When the two districts were drawn, the Republicans created the 1st Congressional District with 53.63 percent black population, while making the 12th Congressional District (which starts in Charlotte and works its way through the Piedmont to Greensboro) with 50.76 percent black population.
In his opinion, Judge Gregory went through the long and complicated history of North Carolina’s redistricting efforts, based partly on the 1965 Voting Rights Act and its implications for the state. He considered varying arguments from the state, especially from the Republican legislative leaders and their own “principle architect” who designed the maps.
In particular, the maps were drawn using a court case known as Bartlett v. Strickland, which focused on whether the 1965 Voting Rights Act, especially Section 2, requires creating a district where a racial minority group, which is sufficiently large enough to control elections, received some support from white voters in the district.
Justice Anthony Kennedy, writing a plurality opinion for the Supreme Court of the United States, held that only if the minority group has 50.01 percent in the new district does the VRA’s Section 2 become necessary to remedy dilution of minority voting patterns. As one analyst wrote after the 2009 decision, nothing in Section 2 “commands a legislature to create a new district out of less than a majority of voters who are of a racial minority.”
In the 2011 map drawing, the Republicans came forth with plans that contained majority black age voting population in the 1st and 12th congressional districts. In Judge Gregory’s opinion, based on his belief that there was “strong evidence that race was the only nonnegotiable criterion and that traditional redistricting principles were subordinated to race,” the challenge to these two congressional districts was sufficient to declare them unconstitutionally drawn.
In fact, because the legislature used the 50 percent plus one threshold, Gregory noted that “the overwhelming evidence in this case shows that a BVAP [black voting age percentage]-percentage floor, or a racial quota, was established” in both districts and “that floor could not be compromised.”
Gregory believed that the state could justify its actions to be ‘narrowly tailored,’ but believed that the state did not, thus acknowledging that race predominated the drawing of the districts because of a “consistent and whopping increase” in the black voting age population.
In fact, Gregory didn’t mince words in his opinion: “the general assembly relied on race—the only criterion that could not be compromised—in substantial disregard of traditional districting principles.”
In a footnote, Judge Gregory believes that North Carolina erred in its belief that the Bartlett case required states to create majority-BVAP to comply with the VRA’s Section 2.
After holding that the two congressional districts were impermissible to the 14th Amendment of the U.S. Constitution, the panel directed that the legislature redraw the maps and gave them a deadline of only two weeks, per state law.
But it would not be just the 1st and 12th congressional district, but the districts that surround them to rebalance the demographics to comply with the court’s decision.
Beyond the immediate claim of an appeal to the Supreme Court of the United States by the legislature’s leaders, the functional reality of such a feat is mind-boggling, considering that the March 15 primary is a little more than a month away from this order and that, in fact, North Carolina voters have begun casting mail-in absentee ballots for that election.
One of the more plausible likelihoods is that the nation’s highest court will stay the order while the merits of the opinion are considered by the U.S. Supreme Court.
An interesting side note is found in District Judge Cogburn’s concurring opinion, where he expresses a concern “about how unfettered gerrymandering is negatively impacting our republican form of government.” While the court has typically avoided reviewing partisan gerrymandering as a ‘political question’ (and that the court will not weigh in on), this opening may give a crucial justice on the Supreme Court—that of Anthony Kennedy—something to consider when revisiting a previous decision in Vieth v. Jubelirer on whether partisan gerrymandering is constitutional or not.
As has been the case in the past two redistricting cycles, uncertainty seems to be the rule of law for North Carolina, at least for the short-term future.
