The Supreme Court held Monday that North Carolina’s congressional maps — or, at least, those of two congressional districts — are unconstitutional racial gerrymanders. In an unusual move, Justice Clarence Thomas joined with the Court’s liberal bloc to produce a 5–3 decision.
Yet, while Cooper v. Harris is a victory for voters who don’t want lawmakers manipulating districts to determine electoral outcomes, it is a small victory. And there is much in Justice Elena Kagan’s opinion for the Court that highlights how fundamentally broken the law governing gerrymandering will continue to be even after Monday’s decision.
Harris involved two congressional districts, the First and the 12th, which the state’s Republican-controlled legislature packed with additional black voters — despite the fact that these districts routinely elected the candidate preferred by African Americans. By cramming more black voters into district that already elected black-preferred candidates, the legislature prevented those black voters from influencing electoral results in other districts, effectively diluting the power of African Americans throughout the state.
Every justice agreed that the First District was an unconstitutional racial gerrymander (Neil Gorsuch, who occupies a seat that Senate Republicans held open until Donald Trump could fill it, did not participate in the case), so the primary disagreement between Kagan’s majority opinion and Justice Samuel Alito’s dissent concerned the 12th District.
Though the lower court determined that the 12th District was packed with black voters because lawmakers were motivated primarily by those voters’ race, the state claimed that it did so for a different reason: to minimize the influence of Democratic voters. Black voters in North Carolina — and, indeed, in the nation as a whole — overwhelming tend to prefer Democrats over Republicans. So it is often difficult to tell the difference between a deliberately racist gerrymander and a partisan gerrymander where Democrats impacted by the gerrymander are also people of color.
In this case, a consultant who helped the Republican-led legislature draw the state’s maps testified that he was instructed “to make the map as a whole ‘more favorable to Republican candidates.’” There was also significant evidence indicating that the people who drew the 12th District were motivated more by a desire to pack more black voters into this district then they were strictly by partisanship.
In the end, Justice Kagan and a majority of her colleagues concluded that they had to defer to the lower court, which found that the mapmakers were motivated primarily by race and not partisanship. Justice Alito and the dissenters, by contrast, would have imposed a devilish condition on plaintiffs who challenge unconstitutional racial gerrymanders in court.
Such plaintiffs, under Alito’s framework, must “come forward with an alternative redistricting map that served the legislature’s political objective as well as the challenged version without producing the same racial effects.” Essentially, they must provide a legislature motivated by rank partisanship with a road map they can use to achieve their partisan goals.
Alito was joined by Chief Justice John Roberts and Justice Anthony Kennedy, both of whom are quite conservative, but also considered to be relative moderates compared to Alito.
So Monday’s decision is a victory over an illegal map, but it’s hardly a rout for the forces of gerrymandering. At most, Kagan’s opinion warns state lawmakers to make a bunch of public statements on the record indicating that they are crafting their maps to discriminate on the basis of party affiliation and not on the basis of race. Indeed, it is likely that the contested 12th District would have been upheld if the state’s lawmakers had simply been more vulgar in advertising partisan goals.
And three justices — including Justice Kennedy, who is considered the Court’s swing voter in partisan gerrymandering cases — called for a rule that would make it even easier to engage in partisan gerrymandering.