Supreme Court Cases (and other interesting cases) - A Thread!

[TheRealJoeFish]

Here's a brief analysis of one of the most important cases this term, Cooper v. Harris, the North Carolina gerrymandering case.  You may have read a headline stating something along the lines of "The Supreme Court strikes down NC Republicans' attempts to suppress black votes through gerrymandering," but if you want to know exactly what they did, exactly why it was illegal, and exactly why the dissent thought that (part of) the ruling should have been different, you've come to the right place!

Briefly, a definition/history of gerrymandering:

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Gerrymandering is, per Wikipedia's definition, "a practice intended to establish a political advantage for a particular party or group by manipulating district boundaries."  That is, it's when the party who's in charge of drawing the boundaries of voting districts changes those boundaries in order to either 1) get more seats, or 2) make it more likely they keep the seats they have.  If it's not intuitive how that can be done, this seminal graphic is helpful:

Interestingly, the verb "gerrymandering" is pronounced with a soft G, sounding like "Jerry," even though the Elbridge Gerry, the Massachusetts Governor after whom the practice was named, pronounced his surname with a hard G, like "Greg."  An 1812 political cartoon conceptualized the unintuitive boundaries of a voting district created by Gov. Gerry as a "Gerrymander," a portmanteau of "Gerry" and "Salamander":

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So, now that a brief overview of the subject matter is out of the way, here's the case that struck down North Carolina's proposed redistricting:

Cooper v. Harris
May 22, 2017
5-3; Majority Opinion written by J. Kagan and joined by J. Thomas, J. Ginsburg, J. Breyer, and J. Sotomayor.  Opinion Concurring in Part/Dissenting in Part written by J. Alito and joined by C.J. Roberts and J. Kennedy.

TL;DR: In some situations, you're allowed to use race to draw voting boundaries, but you better have a good reason for doing so.

Facts: North Carolina voting rights groups challenged the drawing of District 1 ("anchored in the northeastern part of the State") and District 12 (which "begins in the south-central part of the state... and then travels north-east, zig-zagging much of the way to the State's northern border").  The Court noted that NC District 12 has been challenged on numerous occasions since 1991, and this is at least the 5th case in which questions about the district reached the Supreme Court (both the State and the voters had won previous cases involving the district).

From 2001 to 2009 (between two census, which are held every 10 years in the US and upon which voting districts are redrawn), District 1's black voting-age population ("BVAP") was 48%, and District 12's BVAP was 43%.  (That is, both of these districts had large but non-majority black populations.)  During this time, the candidate that was most supported by the BVAP of these two districts uniformly won each election by a fairly large margin.  (That is, these were not districts in which a minority population strongly supported one candidate but that candidate consistently lost; rather, the candidate that received the majority of the BVAP vote won with, usually, 60% to 70% of the vote.)

In 2010, the district boundaries were redrawn by State Senator Robert Rucho and State Representative David Lewis, both Republicans.  As the Court noted, the new maps "significantly altered" Districts 1 and 12.  The 2010 census showed that District 1 needed 100,000 more people, and the new District 1 boundaries included a "finger-like extension" that took those people "from heavily black areas of Durham."  This increased District 1's BVAP from 48.6% to 52.7%.  District 12 needed no population adjustment, but, as the Court noted, "Rucho [and] Lewis... [still] decided to reconfigure the district, further narrowing its already snakelike body while adding areas at either end...."  The result was that, even though there was no need to change District 12's population, the redistricting lowered the number of white voters in the district by 50,000 and increased the number of black voters in the district by 35,000, thus increasing the BVAP of District 12 from 43.8% to 50.7%.

Registered voters in Districts 1 and 12 challenged these new maps (as is their right), essentially arguing that Rucho and Lewis "packed" Districts 1 and 12, which already tended to select candidates preferred by BVAP (that is, Democrats) for the purpose of reducing the number of black voters in other districts and thus making it more likely that Republicans would win those other districts.  (For context, just slightly over 50% of NC voters are Republicans, but 10 of the 13 NC State Senate seats are held by Republicans.)

In District Court, the Judges ruled 3-0 that District 1 was impermissible, and 2-1 that District 12 was impermissible.  The State of North Carolina appealed this ruling to the Supreme Court.  While this case was pending, Roy Cooper, a Democrat, was elected Governor of North Carolina.  Even though he did not want to pursue the case, certain legal provisions allowed the State Attorney General and legislature to continue the lawsuit, with Governor Cooper's backing in name only.

Here is the map of the 2011 Districts:


Holding: "A State may not use race as the predominant factor in drawing district lines unless it has a compelling reason," and the state of NC 1) did use race as the predominant factor here and 2) had no compelling reason to do so.

Reasoning:  The Fourteenth Amendment to the US Constitution guarantees equal protection of the law to all US Citizens, and part of that equal protection is protection from having your vote screwed with based on race ("It prevents a state, in the absence of 'sufficient justification,' from 'separating its citizens into different voting districts on the basis of race'").  When an allegation is made that a state did this, there's a two part test the Court must follow:

1. The Plaintiff (the person alleging that the redistricting is illegal) "must prove that 'race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.'"
IF that is shown, THEN the Court goes to step 2:
2. "The burden... shifts to the State to prove that its race-based sorting of voters serves a 'compelling interest' and is 'narrowly tailored' to that end."  (In lawyer-talk, it must withstand strict scrutiny.)  For this part, the Court notes that complying with the Voting Rights Act ("VRA") counts as a compelling interest.  The VRA, essentially, says you can't deny or abridge the right to vote based on race.

SO, the Supreme Court followed this test, noting that it owed "significant deference" to the findings of the courts below.  As a preliminary matter, it rejected North Carolina's argument that a NC Court decision prevented the Supreme Court from ruling on this; it noted that the SC case was brought by the NAACP, not by the voters in the districts, and the fact that some voters who are plaintiffs here are also members of the NAACP is not enough to apply the results in that case to the voters of Districts 1 and 12 as a whole, especially when a question of federal law is involved.

District 1

Prong 1: Must prove that race was the predominant factor
This part was very, very easy.  As the Court noted, "[d]uring a Senate debate, for example, Rucho explained that District 1 'must include a sufficient number of African-Americans' to make it 'a majority black district.'"  Dr. Hofeller, a redistricting consultant who helped create the 2011 map, "testified multiple times at trial that Rucho and Lewis instructed him 'to draw [District 1] with a [BVAP] in excess of 50 percent."  Hofeller explicitly stated that "he sometimes could not respect county or precinct lines as he wished because 'the more important thing' was to create a majority-minority district" (that is, a district in which the majority of voters belong to a group that is a minority in the state as a whole).  Basically, the Supreme Court spent a couple paragraphs on this, said "this is a slam dunk," and moved on to the second prong:

Prong 2: Because race was the predominant factor, the STATE must prove it had a compelling reason for using race
This was the hard part.  The VRA says that you can't intentionally dilute a minority vote.  Basically, there is evidence of minority vote dilution (and thus a VRA violation) if the following three conditions are met: 1) there's a geographically large and compact group of minority voters that you could draw a reasonable district around; 2) this group of minority voters tends to vote similarly, that is, they're "politically cohesive"; and 3) as the districts are drawn now, the "district's white majority 'votes sufficiently as a bloc' to usually 'defeat the minority's preferred candidate.'"  IF the state can show ALL THREE of those things, THEN the State has a COMPELLING REASON to think that minority votes are being diluted and can take race into account when drawing redistricting lines.

The Supreme Court said, essentially, that in this case there was no problem to be solved; basically, minority voters' preferred candidates in Districts 1 and 12 were never being defeated, let alone usually being defeated, and thus there was no reason to "pack" these districts with more minority voters (which necessitates removing them from other, more contested districts).  "In the lingo of voting law, District 1 functioned, election year in and election year out, as a 'cross-over' district, in which members of the majority help a 'large enough' minority to elect its candidate of choice."

North Carolina argued that, essentially, it was putting more black voters in District 1 because it wanted to guarantee that it wasn't violating minority rights by making extra-sure that minorities' preferred candidates would win Districts1 in the future.  In response to this argument, the Supreme Court basically said, "nonsense; you're addressing a future problem which may or may not harm minority voters' rights by creating a present problem that is clearly harming minority voters' rights."  The Court noted that this purported reason was not addressed in the legislative record when the redistricting expert was being told to add more minority voters to the District.

What Rucho and Lewis did address during their debates and discussions about the new Districts, the Court noted, was a misunderstanding of the law.  The two repeatedly stated that a past Supreme Court case (Strickland) mandated creating a >50% BVAP district, when in fact it said no such thing.  ("They apparently reasoned that if, as Strickland held, [the voting rights act] does not require crossover districts (for [small groups of minority voters]), the [the VRA] also cannot be satisfied by crossover districts (for [large groups of minority voters]).  In effect, they concluded, whenever a legislature can draw a majority-minority district, it must do so, even if [the existing district] would allow the minority group to elect its favored candidates.")  The Supreme Court basically said "that's not what the law says, GTFO."

District 12

The argument about District 12 was different.  With District 12, the State didn't admit that they were trying to give the district more BVAP.  Rather, they said they were trying to pack District 12 with as many democrats as they could, and those democrats just happened to be black.  Basically, the question is whether the redistricting was racially motivated, which is illegal unless you satisfy the VRA as described above, or politically motivated (which is somehow not illegal because this country sucks ass).  So, the District Court (below) had to do a lot more digging into Prong 1 when it came to District 12.  Ultimately, the Supreme Court said "the District Court that made the lower decisions looked at this very closely, and accepted that this was more about race than pure politics.  We can only reverse that if they're clearly mistaken.  And they're not clearly mistaken."

In supporting the contention that District 12's reshaping was also racially motivated, the Court noted that the new shape was more convoluted, even though - unlike District 1 - there was no need to add people.  It was further noted that Rucho and Lewis talked about District 12 in similar ways to District 1, that they wanted to avoid extra scrutiny by making sure that the BVAP in District 12 was higher.  Dr. Hofeller, the redistricting expert, said that "[t]he legislators... 'decided to reunite the black community in Guilford County into [District 12]... 'in order to be cautious and draw a plan that would pass muster under the Voting Rights Act."  As such, the District Court had found that the attempt to make District 12 Majority BVAP was "no 'mere coincidence'," and the Supreme Court found that this was not clearly an incorrect conclusion.

Once that was established, the same Prong 2 analysis (whether there was a compelling reason to use race) was essentially identical to District 1: all of the state's reasons were either arbitrary or based on a misunderstanding of the law.

Concurring Opinion by Justice Thomas

This case was notable in that the four traditionally liberal Justices were joined by Justice Thomas, the most conservative Justice.  He filed a two-page Concurrence, essentially just to note that he thinks this is a good example of giving deference to the lower court, and to express his belief that, typically, the Supreme Court doesn't give enough deference to the lower courts.

Opinion Concurring in Part/Dissenting in Part

Justice Alito, Chief Justice Roberts, and Justice Kennedy filed an Opinion Concurring in Part and Dissenting in Part.  Basically, they agree that District 1 is impermissible (because it was clearly) based on race, but would allowed District 12 to stand, because they felt that it wasn't shown that District 12's boundaries were based predominantly on race.  They essentially argued that, because "race and party affiliation in North Carolina were 'highly correlated'," the Plaintiffs challenging the district should have been required to "show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles... [but] would have brought about significantly greater racial balance."  That line, these Justices noted, was actually from one of the previous cases about District 12.

In practice, what this means is - if the state says "we just tried to pack the district with democrats, and they just happened to all be black," the challenging party would then need to come up with a district that is just as packed with democrats but doesn't change the racial makeup.

Conclusion

Gerrymandering is stupid and dumb and weird.  Call your senators and tell them to stop gerrymandering.  

Traditionally, the Courts have been reluctant to address gerrymandering, but there have been more and more cases to do so recently, and many commentators feel that this case is a tipping point, representing the Court saying "enough is enough" as attempts to entrench the currently controlling party become more and more bold.