SCOTUS ruling in Louisiana redistricting case could have NC impact

The US Supreme Court struck down Louisiana’s new congressional map Wednesday as an unconstitutional racial gerrymander. The decision could affect how North Carolina and other states draw election maps in the future when applying the federal Voting Rights Act.

Like Louisiana, North Carolina has faced repeated lawsuits alleging racial gerrymandering. The 4th US Circuit Court of Appeals is considering a suit challenging two state Senate districts in northeastern North Carolina. Plaintiffs allege that state legislators violated the Voting Rights Act by failing to draw an additional majority-minority district designed to elect the candidate of black voters’ choice.

“Section 2 of the Voting Rights Act of 1965 was designed to enforce the Constitution — not collide with it,” Justice Samuel Alito wrote Wednesday for the high court’s 6-3 majority in the case Louisiana v. Callais. “Unfortunately, lower courts have sometimes applied this Court’s §2 precedents in a way that forces States to engage in the very race-based discrimination that the Constitution forbids.”

“This tension between §2 and the Constitution came to a head when Louisiana redrew its congressional districts after the 2020 census,” Alito explained. “In 2022, a federal judge in the Middle District of Louisiana held that the map adopted by the state legislature likely violated §2 because it did not include an additional majority-black district. But when the State drew a new map that contained such a district, its new map was challenged as a racial gerrymander. A three-judge court in the Western District of Louisiana held that the new map violated the Equal Protection Clause, and the State appealed to this Court.”

“In this suit, Louisiana adopted the challenged map and created the second majority-black district because it quite reasonably anticipated that, if it did not do so, the Middle District of Louisiana would order the use of a map with a differently configured second majority-black district that would effectively oust an incumbent whom the legislature sought to protect,” the majority opinion continued. “Under our existing case law, that situation posed the question whether race or politics was the State’s ‘predominant’ motivation.”

“Another problem stemmed from the long-unresolved question whether compliance with the Voting Rights Act provides a compelling reason that may justify the intentional use of race in drawing legislative districts,” Alito continued. “For over 30 years, we have assumed for the sake of argument that the answer is yes. And we have gone further and assumed that it is enough if a State ‘ha[s] a strong basis in evidence’ for thinking that the Voting Rights Act requires race-based conduct.”

“But allowing race to play any part in government decisionmaking represents a departure from the constitutional rule that applies in almost every other context,” Alito wrote.

“These and other problems convinced us that the time had come to resolve whether compliance with the Voting Rights Act can indeed provide a compelling reason for race-based districting,” he added. “We now answer that question: Compliance with §2, as properly construed, can provide such a reason.”

“Correctly understood, §2 does not impose liability at odds with the Constitution, and it should not have imposed liability on Louisiana for its 2022 map,” Alito wrote. “Compliance with §2 thus could not justify the State’s use of race-based redistricting here. The State’s attempt to satisfy the Middle District’s ruling, although understandable, was an unconstitutional racial gerrymander.”

Alito focused on what Section 2 of the Voting Rights Act provides to minority voters. “[T]he key concept for present purposes is ‘less opportunity than other members of the electorate to … elect representatives of their choice,’” he wrote. “This language sets a baseline against which to assess the opportunity of minority voters: the ‘opportunity’ that ‘other members of the electorate’ have ‘to elect’ their preferred candidates.”

“What, then, is the chance that any given nonminority voter or group of nonminority voters has to secure the election of a preferred candidate?” Alito asked. “The answer to this question depends on the voting preferences of other voters in the district.”

The group of voters in a district depends on “districting criteria used by the State in drawing a legislative map,” Alito explained. Beyond the number of districts required by law and the population requirements that will comply with “one-person, one-vote” standards, legislators can choose other redistricting criteria.

“For example, the legislature might want to minimize changes in the prior map, avoid districts with discontiguous territory, and avoid splitting counties or municipalities,” Alito wrote. “It might impose a certain standard of compactness, aim to protect some or all incumbents, or promote the prospects of a particular political party.”

Feeding this criteria into a computer, “as is generally the case today,” “the map it produces may place a particular voter or group of voters in a district in which a majority generally agrees, generally disagrees, or only sometimes agrees with their voting preferences,” Alito wrote. “But in any event, the ‘opportunity’ of these ‘members of the electorate’ to contribute their votes to a winning cause is whatever opportunity results from the application of the State’s combination of permissible criteria.”

“That is what our randomly selected individual voter and group of voters can expect regarding their opportunity to elect a preferred candidate. And under §2, a minority voter is entitled to nothing less and nothing more,” Alito added.

“Not only is this the best reading of the statutory text, but it also ensures that §2 of the Voting Rights Act does not exceed Congress’s authority under §2 of the Fifteenth Amendment,” Alito wrote.

“[T]he focus of §2 must be enforcement of the Fifteenth Amendment’s prohibition on intentional racial discrimination,” the majority opinion explained. “When §2 is properly interpreted in the way we have outlined, it is sufficiently congruent with and proportional to the Amendment’s prohibition. While that interpretation does not demand a finding of intentional discrimination, it imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.”

Alito called for revisions to the 40-year-old standards set by a precedent case from North Carolina called Thornburg v. Gingles. He cited “vast social change,” the emergence of a “full-blown two-party system” in states once dominated by Democrats, the end of partisan gerrymandering cases in federal court based on the North Carolina case Rucho v. Common Cause, and the “increased use and capabilities of computers in drawing districts and creating illustrative maps.”

Under the revised standards, the new Louisiana map fails, Alito explained.

“Here, the State has been forthright from the beginning that its aim was to protect the State’s most prominent Republican House members,” he wrote. “One may lament partisan gerrymandering, but … partisan gerrymandering claims are not justiciable in federal court. And in a racial gerrymandering case like the one before us, race and politics must be disentangled, as even the author of the dissent has acknowledged.”

“If race and politics are not disentangled and a §2 claim is cynically used as a tool for advancing a partisan end, the VRA’s noble goal will be perverted,” Alito added.

Justice Clarence Thomas, supported by Justice Neil Gorsuch, supported the majority decision but offered a concurring opinion as well.

“This Court should never have interpreted §2 of the Voting Rights Act of 1965 to effectively give racial groups ‘an entitlement to roughly proportional representation,’” Thomas wrote. “By doing so, the Court led legislatures and courts to ‘systematically divid[e] the country into electoral districts along racial lines.’ … That interpretation rendered §2 ‘repugnant to any nation that strives for the ideal of a color-blind Constitution.’ Today’s decision should largely put an end to this ‘disastrous misadventure’ in voting-rights jurisprudence.”

“As I explained more than 30 years ago, I would go further and hold that §2 of the Voting Rights Act does not regulate districting at all,” Thomas added.

Justice Elena Kagan wrote for the court’s three dissenting justices. “Under the Court’s new view of Section 2, a State can, without legal consequence, systematically dilute minority citizens’ voting power,” she wrote. “Of course, the majority does not announce today’s holding that way. Its opinion is understated, even antiseptic. The majority claims only to be ‘updat[ing]’ our Section 2 law, as though through a few technical tweaks. But in fact, those ‘updates’ eviscerate the law.”

Kagan lamented the majority’s “now-completed demolition of the Voting Rights Act.”

Wednesday’s ruling has no direct impact for North Carolina’s election maps. But it could affect future redistricting efforts in the Tar Heel State.

“Democrats and I guess many Black voters have eventually been caught out by the contradictions in their views of how they think Blacks should be districted,” said NC State political scientist Andrew Taylor in an email to Carolina Journal. “In the South, they want Blacks to be concentrated so that they can pick up a seat here or there as the minority party.  Outside the South they want Blacks (and other minorities) not to be concentrated and therefore distributed more evenly across districts to maximize the party’s majority in seats — this was the philosophy in white Democrats’ litigation against majority-minority districts in the 1990s. As a result, Democrats see section 2 in different ways depending on the kind of state it is being applied to.”

“SCOTUS ruling in Louisiana redistricting case could have NC impact” was originally published on www.carolinajournal.com.