No state has done more in the post-Jim Crow era to restrict voting rights than North Carolina. Just weeks after the Supreme Court gutted a key provision of the Voting Rights Act, the state enacted a comprehensive voter suppression law that pulled together many different provisions used to restrict voting in other states. Meanwhile, its congressional maps offer only the illusion of a democracy. During the last presidential election, Republican candidate Mitt Romney received just over 50 percent of the popular vote in North Carolina. Nevertheless, Republicans won 9 of the state’s 13 seats in the U.S. House under North Carolina’s gerrymandered maps.
If a decision handed down by a panel of three federal judges on Friday stands, however, the state will need to change its congressional maps — and fast. Judge Roger Gregory’s opinion for a majority of the panel not only holds that two of the state’s congressional districts are the product of an unconstitutional racial gerrymander, it “require[s] that new districts be drawn within two weeks of the entry of this opinion to remedy the unconstitutional districts.” Thus, the state legislature is now looking at a February 19 deadline to fix its gerrymandered maps.
The Court’s opinion in Harris v. McCrory turns on North Carolina congressional districts 1 and 12. According to Judge Gregory’s opinion, the state’s mapmaker — a redistricting expert “who served as redistricting coordinator for the Republican National Committee for the 1990, 2000, and 2010 redistricting cycles” — intentionally packed black voters into these two districts, a decision that would have diminished the impact of the African-American vote in other parts of the state. The court concludes that North Carolina set a “racial quota” in each of these districts, and insisted that other considerations must subordinate themselves to this quota.
Indeed, the Court describes the 12th District as a “serpentine district [that] has been dubbed the least geographically compact district in the Nation” — though, admittedly, the district owes its odd shape at least as much to the legacy of partisan gerrymandering as it does to the more recent racial gerrymander. As Judge Max Cogburn describes this district in a concurring opinion:
It is a district so contorted and contrived that the United States Courthouse in Charlotte, where this concurrence was written, is five blocks within its boundary, and the United States Courthouse in Greensboro, where the trial was held, is five blocks outside the same district, despite being more than 90 miles apart and located in separate federal judicial districts. How a voter can know who their representative is or how a representative can meet with those pocketed voters is beyond comprehension.
At the very least, the court’s opinion would require the state to redraw the two offending districts, a process that will necessarily have ripple effects into other nearby districts. Moreover, because race often correlates with partisan affiliation, the new maps could give Democrats a better shot at winning some of the affected districts. Nevertheless, there are several reasons why opponents of gerrymandering should pause before they break out the champagne.
First, the North Carolina case resembles the Supreme Court’s recent decision in Alabama Legislative Black Caucus v. Alabama which expressed skepticism of a similar racial gerrymander. The Alabama case, however, involved a much more aggressive gerrymander — Alabama packed some districts so that over 70 percent of the population would be black, while the two North Carolina districts were only a little over 50 percent black. And the Supreme Court’s decision was only 5–4 in Alabama. It’s possible that conservative Justice Anthony Kennedy, in particular, will see the North Carolina case differently than he saw Alabama’s.
Additionally, while the Supreme Court has drawn boundaries around states’ ability to engage in racial gerrymanders, a majority of the Court has left states free to draw politically gerrymandered maps. The result, as Judge Cogburn laments in his concurring opinion, is that “the fundamental principle of the voters choosing their representative has nearly vanished. Instead, representatives choose their voters.”
Finally, it’s worth noting just how long it took for a court to strike down North Carolina’s maps, which were drawn in 2011. Since those maps were drawn, the state ran two entire congressional elections and sent four years worth of congressional delegations to Washington based on the gerrymandered maps. Even if the state complies with Judge Gregory’s February 19 deadline, the message to lawmakers is clear: go ahead and draw the most self-serving maps you can manage, because even if they are struck down it will take the courts years to do so.