WHEN the Supreme Court heard Cooper v Harris last December, an exasperated Justice Stephen Breyer lamented that the justices were stuck, yet again, “reviewing 5,000-page records” to determine if states had violated the constitution when drawing electoral district lines. The legal standard, Justice Samuel Alito added, is “very, very complicated” and serves as “an invitation to litigation”. On May 22nd, Justice Alito repeated this sentiment, in a biting partial dissent, as the court slammed North Carolina Republicans for giving too much thought to race when crafting two congressional districts. The decision, Justice Alito warned, will give voters renewed cause to try to “obtain in court what they could not achieve in the political arena” and turn the “federal courts…into weapons of political warfare”.
Both sides in this 5-3 decision called attention to the fact that one of the districts at issue was making its fifth appearance before the justices since the 1990s. (Justice Alito emphasised “fifth” with italics; Justice Elena Kagan, writing for the majority, used a parenthetical exclamation point.) Cooper reinforces a principle the justices have been refining in a series of decisions over the past few years: drawing electoral district lines by relying too heavily on racial considerations, when sorting by race isn’t necessary to protect the right to vote, violates the constitutional guarantee of equal protection.
There was spirited disagreement on the legality of serpentine District 12 (pictured)—the five-time repeat offender—but all eight justices (Neil Gorsuch did not participate in the ruling; he wasn’t yet seated when the case was argued) agreed that North Carolina’s District 1, resembling an octopus, must be redrawn to satisfy the constitution. Justice Kagan rejected the state’s argument that it was only trying to comply with the Voting Rights Act (VRA), the 1965 law policing the franchise for minorities, when it redrew the district to envelop thousands more black voters. For years, District 1 was “an extraordinarily safe district for African-American preferred candidates”, Justice Kagan explained, before North Carolina opted in 2011 to increase its already large black voting-age population. Boosting the percentage of blacks in District 1 from 48.6% to 52.7% was, the court said, completely unnecessary, given that many whites in those areas were now voting for Democrats too. “[E]xperience gave the state no reason”, Justice Kagan wrote, “to think that the VRA required it to ramp up District 1’s” black population by the tens of thousands. The Supreme Court cannot “approve a racial gerrymander whose necessity is supported by no evidence and whose raison d’être is a legal mistake”.
The strip of North Carolina on which the justices divided is a skinnier version of the nation of Chile, set on a 45-degree angle and decorated with baubles and sticks. But the strange, obviously contrived shape of District 12 is not evidence, by itself, that the state used race illicitly in drawing boundaries. As Justice Anthony Kennedy wrote in March, “the equal-protection clause does not prohibit misshapen districts”. This is because both “political and racial reasons are capable of yielding similar oddities in a district’s boundaries”, Justice Kagan explained, and only the latter are potentially unconstitutional.
Sorting voters by race can be vexed: many southern states have been called upon to enhance the voting power of blacks in order to comply with the Voting Rights Act, but electoral maps may not rely on race too heavily, or without good reason. Justice Kagan noted that “exchanges produced a sizable jump” in District 12’s share of black voters, from 43.8% to 50.7%. She then recounted a witness’s reasoning from the trial court explaining why “‘race, and not party’, was ‘the dominant factor’ in District 12’s design”. While “[g]etting to the bottom of a dispute like this one poses special challenges for a trial court”, Justice Kagan wrote, the justices’ job is different, and “generally easier”. Rather than weigh the facts anew, the Supreme Court has given itself the task only of sniffing out a “clear error” in the lower court’s ruling. If the court below made a “plausible” conclusion based on the record, the Supreme Court gives “singular deference to [its] judgments about the credibility of witnesses”.
For Justice Alito, this deference to the district court’s ruling looks more like “diffidence”—and is inconsistent with the Supreme Court’s 2001 ruling upholding a gerrymander of the very same district. “A precedent of this court should not be treated like a disposable household item”, Justice Alito wrote, “to be used once and then tossed in the trash”. As “unsavoury” as partisan gerrymandering might be, Justice Alito wrote (for himself, Justice Anthony Kennedy and the chief justice, John Roberts), “that is not the issue here”. The question is whether race played too much of a role, and Justice Alito is sure that it did not.
The rare coalition of the Supreme Court’s four liberals with Clarence Thomas, the most conservative justice, is less surprising than it appears. Justice Thomas consistently votes against official consideration of race, no matter the political fallout: he rejects race-based affirmative action, voted against an earlier District 12 gerrymander in 2001 and did so again this week. But three questions linger in the wake of Cooper: Will the decision ease or exacerbate the Supreme Court’s burden of policing funny-looking state electoral maps? How will the justices handle their fresh opportunity to weigh in on purely partisan gerrymandering in Gill v Whitford, an appeal involving the Republican Party’s grip on the Wisconsin state assembly? And does Cooper herald a new set of constraints on Republican-held state legislatures itching to entrench their electoral advantage following the 2020 census? Like it or not, the justices are at the centre of “political warfare” over a uniquely American practice whereby legislators get to choose their voters, rather than the other way around.