US Supreme Court grapples with complex NC redistricting questions
Posted December 5, 2016
Washington — U.S. Supreme Court Justice Stephen Breyer grew frustrated Monday as he tried to slash his way through the legal bramble that is North Carolina's latest redistricting case to reach the court.
The tangle of issues at play over whether lawmakers had relied too heavily on race when they drew North Carolina's 13 U.S. House districts in 2011 had grown up from the firmament of 50 years of court rulings, some of which Breyer himself had authored.
"I guess I was the problem," sighed the long-serving justice, saying that he had hoped a previous case out of Alabama would have provided the roadmap that lawmakers and lower courts needed to avoid a return trip to the nation's highest court.
His comment not only got a subdued chuckle but also got to the heart of the problem the court faces: How can it give clear guidance on what it expects from redistricting in a way that covers the myriad situations likely to arise when crafty legal and political minds get together to draw voting districts.
North Carolina lawmakers redraw their own legislative districts as well as maps for Congress every 10 years following each federal census of the population. Redrawing the maps is primarily meant to ensure each district has roughly the same number of people and, therefore, every person's vote counts roughly the same.
But Republicans and Democrats have long used the process to tilt the political scales to their favor. In North Carolina's case, the 2011 map gave Republicans a 10-3 advantage in the state's U.S. House delegation that would likely be somewhat more even if the maps were drawn with less partisan ends in mind.
Complicating matters in North Carolina and other southern states is the applicability of the Voting Rights Act of 1965, a federal law designed to ensure that minorities can elect the candidates of their preference. As they have in other cases, the justices found themselves in the North Carolina case trying to balance the right of lawmakers to pursue political interests versus consideration for minority voters and a handful of racially neutral redistricting principles.
The case before the court Monday was brought by a group of individual plaintiffs backed by Democrats and progressive nonprofit groups. They focused on two of the state's 13 districts: The 12th District, which used to snake its way from Charlotte to Greensboro along Interstate 85, and the 1st District, which resembled a jellyfish that floated in northeastern North Carolina with tendrils extending into the Triangle.
A final ruling isn't expected until late spring, and there was no clear indication of how the court might be leaning Monday. As a result of the federal court ruling that was appealed to the Supreme Court, the state has already redrawn its congressional map. If state lawmakers prevail in this case, North Carolina will revert to the older maps.
Although the ruling in the case could help set the boundaries for only two more congressional elections, the lasting impact of the case could give lawmakers and lower courts alike a roadmap for drawing districts in the future.
When is race at play?
Although Justice Anthony Kennedy is expected to be the swing vote – determining whether there is a 4-4 deadlock among Republican and Democratic appointees or a clear direction from the court – he asked only sparing questions throughout the proceeding, seemingly clarifying finer points but rarely pressing attorneys on either side of the case.
Far more aggressive were Breyer and Justices Elena Kagan and Samuel Alito, who repeatedly peppered lawyers in the case with questions.
As lawyer Paul Clement, who represents the state in the case, insisted that the 12th District was designed on political, not racial, criteria, Kagan interjected.
"That's the question though, isn't it?" Kagan said, adding that there was evidence in the case that indicated there were racial factors at play.
Clement said it would be a "big thing" to ask a federal court to find that lawmakers were lying about using political factors rather than racial ones.
Kagan agreed, to a point, saying that voters' racial characteristics and political preferences sometimes strongly correlate and that the plaintiffs would need "strong evidence" of racial gerrymandering to win. Then, she added, "There really is some in this case."
The focal point of that discussion was Guilford County. Clement said that, after drawing the 12th District, map makers did check to see how it impacted black populations in that county. That, he contended, was necessary to satisfy strictures of the Voting Rights Act. But Marc Elias, who argued for plaintiffs in the case, said it was evidence that race was too much a factor when lines were drawn.
North Carolina's was the second redistricting case on the court's docket Monday. The other, a Virginia case, involved how lawmakers used race when they drew state House districts. Throughout both, Breyer repeatedly asked lawyers about prior decisions and how they applied. In particular, he asked for data talking about how many white and black voters were moved into and out of a district when it was redrawn.
The justices also probed an idea raised by Clement that plaintiffs in the case should have to draw their own maps, pointing out that's what was required in an earlier case.
"If you want to give guidance to the lower courts, don't tell them you faked them out," Clement said.
But Elias said that the case Clement was referring to involved different issues. In the current case, he argued, those challenging the maps only needed to show that race was improperly used.
Alito challenged that Elias was asking lawmakers to "prove a negative." If the plaintiffs, he said, were able to draw their own map that achieved a political balance without a racial imbalance, it would go a long way toward proving the case.
"How much weight is the absence of a map entitled to?" Alito asked.
"I think it's entitled to no weight," Elias said.
Should we even be here?
Kennedy along with Justice Ruth Bader Ginsburg kicked off a line of questioning toward the end of the hearing with regard to whether the Supreme Court should even be hearing the North Carolina case.
Already, they pointed out, the state courts had heard and settled a very similar claim. Why then should the U.S. Supreme Court overrule North Carolina's own courts.
"This is a question of the applicability of federal law and federal constitutional claims," Elias said, insisting that, while the justices didn't have to ignore the state case, they needed to give deference to the fact that the federal case had gone forward as well.
That line of questioning caught the attention of Chief Justice John Roberts, who put the matter to both Elias and Nicole Saharsky, an assistant U.S. solicitor general who argued in favor of the plaintiffs.
It also fell to Saharsky to handle the bulk of the arguments about the 1st District, which got short shrift during Elias' and Clement's arguments. In particular, she dialed in on the fact that lawmakers added more black voters to the district than appears necessary. Democratic Congressman G.K. Butterfield, she pointed out, was able to win election with a district made up of only 46 percent black voters.
"There just wasn't a problem with vote dilution," she said.
However, in his rebuttal remarks, Clement insisted it was the people bringing the lawsuit who were trying to achieve political gain by using race, as he says has been the case in similar lawsuits.
"Most of these challenges are brought by people who have as much concern about electing Democrats as they do about claims involving race," he said.
That brought the day's debate back to the question of how lower court judges reliably recognize when race had been used in an impermissible way?
"No one has a good answer to that question," Breyer said.