While we normally focus on procedural issues in North Carolina appellate law, a trio of recently decided United States Supreme Court cases arising out of North Carolina affect everyone living in this state. So in a departure from the norm, what follows is an analysis of these cases and how they will impact both the present and future of electoral districts in the Tar Heel state.
As many have likely read, North Carolina’s voting districts have been back in the news recently. On May 22, the United States Supreme Court issued its ruling in Cooper v. Harris, a redistricting case involving North Carolina Congressional Districts 1 and 12. In Cooper, the Court affirmed a three-judge panel based in the Middle District of North Carolina that had ruled that the North Carolina legislature had impermissibly used race as the predominant factor in drawing Congressional Districts 1 and 12. The Court affirmed 8-0 as to District 1 (Justice Gorsuch had not yet been confirmed when oral argument occurred and did not take part in the decision), and 5-3 as to District 12.
Eight days later on May 30, the Court vacated the North Carolina Supreme Court’s decision in Dickson v. Rucho for a second time, remanding that case for further consideration in light of the ruling in Cooper. Rucho involves the constitutionality of both congressional and state legislative districts that plaintiffs allege were impermissibly drawn with race as the predominant factor.
And on Monday of this week, the Court decided North Carolina v. Covington. In Covington, the Court affirmed the ruling of a separate three-judge panel, also from North Carolina’s Middle District, that had ruled that 28 of North Carolina’s state legislative districts had been racially gerrymandered, and had ordered the General Assembly to re-draw the districts and hold special elections in the fall of 2017. The Court had initially stayed the implementation of the three-judge panel’s order, but its Monday ruling affirmed the decision without opinion, vacated the stay, and instructed the three-judge panel to re-weigh whether special elections in 2017 were still appropriate.
Redistricting cases are complicated and technical, and what follows is somewhat lengthy in its analysis. However, as the sheer number of cases in the last decade indicates, redistricting is becoming, if it was not already, one of the most important constitutional issues of our times. This is particularly true in the State of North Carolina. Voting equality and fair representation are foundational to our system of government, and the cases discussed below, as well as those currently working their way through the courts, will affect our voting rights for years to come.
From an appellate procedure standpoint, redistricting cases operate a bit differently from standard federal court cases. Under 28 U.S.C. §2284, a party to a redistricting case is entitled to have the case heard by a three-judge panel as opposed to a single district court judge (typically noted in the complaint, much like a demand for a jury trial). Once the request for such a panel is filed, the judge to whom the case has been assigned notifies the Chief Judge of the Circuit, who then appoints two other judges to complete the panel. At least one of those appointed must be a circuit judge. Pursuant to 28 U.S.C. §1253, any order by a three-judge panel that grants or denies an interlocutory or permanent injunction can be appealed directly to the U.S. Supreme Court. Thus, there is no intermediate level of appellate review of a redistricting case heard by a three-judge panel.
States are required to re-draw voting districts at least every ten years as a result of the interplay between the Decennial Census and the Equal Protection Clause of the Fourteenth Amendment. In order to ensure voting equality, the Equal Protection Clause requires that voting districts have equal populations, known more commonly as the principle of “one person, one vote.” As such, when the results of the Census are published and legislatures are given information about how the populations in the various districts in their state have changed, they must re-draw the districts to re-equalize populations that have shifted over the past ten years. Due to a combination of factors, redistricting efforts in North Carolina commonly result in litigation. In fact, as Justice Kagan noted, Cooper v. Harris represented the fifth time that the NC 12 had been in front of the Supreme Court.
The redistricting at issue in Cooper, Rucho, and Covington occurred after the 2010 Census, when the North Carolina General Assembly re-drew the State’s congressional and state legislative districts and approved new maps in 2011. Multiple (and somewhat overlapping) lawsuits followed. In 2011, plaintiffs filed suit in Rucho, challenging both the legislative and congressional districts as drawn by the N.C.G.A, including Congressional Districts 1 and 12. In 2013, a separate group of plaintiffs filed suit in Cooper, challenging only congressional districts 1 and 12. In 2014, the North Carolina Supreme Court issued a ruling in Rucho finding that the challenged districts were constitutional. The case was appealed to the United States Supreme Court, but was vacated and remanded for reconsideration after the Court’s ruling in Alabama Legislative Black Caucus v. Alabama, 135 S.Ct. 1257 (2015), a case dealing with the use of race-based numerical targets during redistricting, among other gerrymandering issues. After remand, the North Carolina Supreme Court again upheld the districts in Rucho. While the events in Rucho were unfolding, Covington was filed in May of 2015, with plaintiffs contending that nine state Senate districts and 19 state House districts had been impermissibly drawn with race as the predominant factor. Meanwhile in Cooper, the three-judge panel issued its 2-1 opinion on February 16, 2016, holding that both Districts 1 and 12 were unconstitutional. That ruling was appealed, culminating in the Supreme Court’s recent affirmation, and bringing us to the current state of affairs.
While headlines on the recent opinions have understandably centered on their political ramifications (and discussion of Justice Thomas’s decision to join the majority in Cooper), there is also quite a bit to unpack from the Justice Kagan’s opinion in Cooper, as well as how the resolutions of these various suits will affect the state and its elections going forward.
Cooper v. Harris
First, the Supreme Court dealt with several preclusion questions that had been raised with the three-judge panel relating to the North Carolina Supreme Court’s ruling in Rucho. As noted above, in Rucho the North Carolina Supreme Court (twice) upheld a finding that both districts at issue in Cooper were constitutional. The State argued that 1) the state court’s ruling should have barred the case in Cooper from proceeding under both claim and issue preclusion, and 2) that even if the ruling in Rucho did not preclude the Cooper suit entirely, the state court’s contrary factual findings required the Court to give a lower level of deference to the factual findings of the lower court in Cooper than the ordinary “clear error” standard.
The State’s preclusion theory was that, because the plaintiffs in Cooper were allegedly members of the civil rights organizations that had sued in Rucho, they should bound by that result. Citing to the lower court’s rejection of that theory on summary judgment, and the State’s decision not to present further evidence on the theory at trial, the Court held that it “need not decide whether the alleged membership would have supported preclusion if they had been proved. It is enough that the District Court reasoned that they had not.” The Court thus essentially avoided the question entirely. The Court also rejected the State’s standard of review argument, noting that “the very premise of clear error review is that there are often ‘two permissible’—because two ‘plausible’ – ‘views of the evidence.’” As such, “[e]ven assuming the state court’s findings capture one such view, the District Court’s assessment may yet represent another.” [Cooper at 10]. Thus, clear error remains the standard; an appellate court should not make an exception to this standard when another court has made differing findings of fact on the same issues.
Second, the Supreme Court unanimously (8-0) affirmed the three-judge panel’s ruling that race had impermissibly been the predominant factor in the drawing of District 1. Perhaps more interesting than the holding itself, however, is the Court’s explanation that the State’s proffered justifications for its use of race failed because they were based on a flawed application of prior case law. This is important because that flawed application had been used to draw other voting districts as well.
First, some additional context: inquiries into racial gerrymandering require courts to undertake a two-step inquiry. First, the court looks to see whether race was the “predominant” factor in how a district was drawn. If the court finds that it was, the court then looks to whether the district can withstand strict scrutiny analysis. As you surely remember from your law school con law class , this means the state must prove that its use of race was “narrowly tailored” to serve a “compelling interest.”
As for District 1, there was substantial evidence that the State had purposefully drawn District 1 with the goal of creating a district where African-Americans made up a majority of the voting age population (a so called “majority-minority district”). The three-judge panel found this evidence persuasive, and the Supreme Court agreed. As such, the question became whether District 1 could survive a strict scrutiny analysis. The Supreme Court has “long assumed that complying with the [Voting Rights Act] is a compelling interest” that would satisfy the strict scrutiny applied to racial gerrymanders, and that race-based redistricting would be narrowly tailored if the State had “good reasons” for thinking the VRA demanded the steps that it took. Cooper at 12. In Cooper, the State’s alleged justification for its use of race in drawing District 1 was that it needed District 1 to be a majority-minority district in order to avoid a vote dilution lawsuit under Section 2 of the VRA.
Two prior Supreme Court cases dealing with section 2 of the Voting Rights Act play a role in the analysis. In Thornburg v. Gingles, 478 U.S. 30 (1986), the Court identified three threshold factors that must be present for a there to be a viable vote dilution claim under section 2 of the VRA: 1) a minority group that is sufficiently large and geographically compact enough to constitute a majority in a reasonably configured single-member district; 2) the minority group must be politically cohesive; and 3) the district’s white majority population must vote as a bloc sufficiently enough to “usually defeat the minority group’s preferred candidate.” Id. at 50-51. The second relevant case is Bartlett v. Strickland, 556 U.S. 1 (2009). That case, arising out of North Carolina, involved a factual scenario in which minority voters could not form a majority in a reasonably compact district, but were sizeable enough to form a “crossover district” in which they could elect candidates of their choice with the help of some amount of white voters “crossing over” and voting for the minority’s candidate of choice. Id. at 14. In a plurality opinion, the Supreme Court held that failing to create such a “crossover district” could not result in vote dilution liability, because such a district failed to satisfy the first Gingles factor (a minority population sufficient to create a majority in a reasonably compact district), and thus Section 2 of the VRA did not apply at all. Id at 18-20.
Applying this precedent to the Districts at issue in Cooper, the Legislature had apparently reasoned that, because the VRA did not require crossover districts to be drawn whenever possible, that Section 2 could therefore never be satisfied by crossover districts; in effect, the legislature concluded that “whenever a legislature could draw a majority-minority district, it must do so.” Cooper at 16. The fault with such an interpretation, however, is that it ignores entirely the third Gingles factor, the presence of consistent white bloc voting. It is only when all three factors are present at the same time that the threat of a vote dilution lawsuit can justify race based redistricting.
This analysis becomes interesting when trying to predict how the North Carolina Supreme Court will deal with Rucho on remand. Given that the State relied on the same mistaken legal interpretation in drawing the state legislative districts as it did in drawing District 1, it seems that the guidance from Cooper makes it unlikely that the North Carolina Supreme Court will find these districts constitutional for a third time.
Finally, we get to the majority’s analysis of District 12, the cause of some sparring between Justice Kagan and the author of the dissent, Justice Alito. The Court’s analysis of the constitutionality of District 12 turned solely on which of two possible motivations predominantly explained how District 12 was drawn: race or politics. The majority upheld the lower court’s factual findings that race predominated. However, the State also mounted a legal challenge to the lower court’s ruling, resulting in a holding by the majority that will have implications for future redistricting cases.
The State had argued to the three-judge panel and again to the Supreme Court that, in cases where race and politics are competing explanations for why a district was drawn a certain way, the challenging party is required to provide alternate district maps showing that the legislature could have achieved its desired political goals while also significantly improving racial balance in the districts. Cooper at 28.
The State’s argument finds it basis in a prior redistricting case involving, yet again, North Carolina District 12. The case is Easley v. Cromartie, 532 U.S. 234 (2001), more commonly referred to as Cromartie II. In Cromartie II, the Court stated:
“In a case such as this one where majority-minority districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must 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. That party must also show that those districting alternatives would have brought about significantly greater racial balance.”
Id. at 258. The State seized upon this language as making the provision of alternative maps essential to any challenge to a majority-minority district where race and politics are highly correlated. The majority disagreed, explaining that in Cromartie II, there was extremely weak direct evidence of racial predominance, and the rest of the evidence, including the plaintiffs’ alternative maps, was of what the majority called “the would-have-could-have” variety. Cooper at 33. Such evidence, according to the majority, did not actually show anything definitive. Id. As such, according to Justice Kagan, Cromartie II requires that alternative maps be provided only where there is little direct evidence of racial animus and plaintiffs must rely on evidence of “foregone alternatives.” Id. at 34. In a case such as Cooper, however, where Justice Kagan noted that there was direct evidence of intent that the three-judge panel plausibly found satisfied the plaintiff’s burden, maps are unnecessary. Id. Justice Kagan did note that while alternative maps certainly could serve as key evidence , a lack of maps was simply not fatal, and a plaintiff’s only requirement was to persuade the panel, however they could, that race had been predominant consideration. Cooper at 29-30.
Justice Alito strongly disagreed, opening his dissent by stating that Supreme Court precedent “should not be treated like a disposable household item—say, a paper plate or napkin—to be used once and tossed in the trash.” Cooper v. Harris at 1 (Alito, J, dissenting). After reviewing the evidence presented below, and accusing the majority of ignoring the State’s evidence of political motivations (calling the majority’s discussion in light of this failure “like Hamlet without the prince”), Alito explained that he would reverse the ruling of the lower court as to District 12 because the challengers had failed to provide alternative maps.
The majority’s clarification of the Cromartie II will have political implications in North Carolina, but the decision may also make redistricting suits easier for future plaintiffs, giving them one less hurdle to clear, at least in situations that differ factually from Cromartie II.
Rucho and Covington
The Supreme Court did not issue an opinion in either Covington or Rucho, instead choosing to affirm Covington without opinion, and remand Rucho for the North Carolina Supreme Court to decide. Thus, both the North Carolina Supreme Court and the three-judge panel have work yet to do, the results of which will play a large role in the state’s electoral near-future. Given that the Supreme Court affirmed the three-judge panel in Covington on the merits, the General Assembly will be required to re-draw its legislative districts before the next election, whether it is in 2017 or 2018. The Cooper decision makes clear that the justification for how the state drew some of its legislative districts is invalid, and a similar decision may soon follow by the North Carolina Supreme Court in Rucho.
Cooper, Rucho and Covington add further gloss onto an already detailed history of alleged racial gerrymandering in North Carolina. The future of gerrymandering as a practice, however, likely lies in cases concerning the constitutionality of political gerrymandering that are currently either winding their way towards the Supreme Court, or in the case of Gill v. Whitford, already there. A ruling finding that political gerrymanders are unconstitutional would drastically change redistricting nationwide, not only in terms of a state’s political makeup, but by eliminating the “politics not race” defense that legislatures have relied upon to justify the drawing of racially contentious districts. Until the Supreme Court provides clarification on that issue, however, you should expect further lawsuits with every round of redistricting to come, and as demonstrated by the decision in Cooper and its attendant ramifications, with each attempt at clarification comes an added layer of complexity to an already very complicated process.