Redistricting cases can be head-spinning, and Monday’s argument at the Supreme Court in McCrory v. Harris, the latest in a line of contentious election-related disputes out of North Carolina, is no exception. At stake is how effectively Americans are represented in state legislatures and in Congress.
At the heart of Monday’s arguments is the question of whether race or politics predominated in the drawing of one of North Carolina’s congressional districts. A lower court found that the state legislature unconstitutionally packed African-Americans into the district to limit their influence. If a majority of the justices agree that race predominated, that lower court’s decision will stand.
On the other hand, if the Supreme Court decides that politics drove design of the district — a long narrow, winding area stretching hundreds of miles from Charlotte to Winston-Salem — it would likely survive. That strange calculus comes thanks to a gap in the court’s law that makes excessive consideration of race in redistricting impermissible, but largely greenlights excessive partisanship.
But while the justices devoted substantial time at Monday’s argument to wrestling with this question of “race or politics,” it’s ultimately a false problem. In many places throughout the country — and particularly in the South — race and partisanship are increasingly fused, so it can be nearly impossible to untangle the two.
Indeed, as one court recently found, in North Carolina, “African-American race is a better predictor for voting Democratic than party registration.” As a result, mapmakers in that state (and others) can use African-American identity as a proxy for Democratic Party membership, packing African-Americans in large numbers into a small number of districts and spreading out the rest of the community to ensure that Republicans dominate the congressional delegation. And for African-American voters, the difference between race and politics can be academic: Because many of them identify so closely with the Democratic Party, Republican-led gerrymanders can have a disproportionately negative impact on them.
North Carolina, in fact, shows how the absence of limits on partisan (as opposed to racial) gerrymandering hurts the nation’s growing minority communities. By refusing to clearly put political gerrymandering out of bounds, the Supreme Court has given states incentive to disguise racial gerrymanders as partisan gerrymanders and undertake genuine partisan gerrymanders in many places across the country. Legislators in North Carolina, Wisconsin, New York and elsewhere have used that lack of clarity to justify all sorts of manipulative maps as perfectly “constitutional” efforts to disadvantage the other party or rig election results. Average voters are the losers.
The court could eventually end all this trickery by clearly stating that partisan gerrymandering is unconstitutional and giving lower courts a clear test for figuring out when partisan schemes have gone too far.
The justices might not have to wait long to do so: A series of partisan-gerrymandering cases are approaching the court. With a clear, easy-to-apply rule against partisan gerrymandering in the books, mapmakers wouldn’t be able to use race or politics — or race posing as politics — to draw maps that undercut the voting power of minority or opposing viewpoints. That would be a huge step toward ensuring that everyone — regardless of party or race — has a fair shot at electing legislatures that are representative of and accountable to them.
Michael C. Li and Thomas P. Wolf are senior counsel and counsel, respectively, in the Democracy Program at the Brennan Center for Justice at NYU School of Law.