by Jordan Green
It’s a striking irony that the judicial precedent relied upon by the three-judge panel that ordered the Republican-controlled General Assembly to redraw North Carolina’s congressional districting map is a 23-year-old Supreme Court opinion rendered by a conservative majority.
“A voting district is an unconstitutional racial gerrymander when a redistricting plan ‘cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification,’” Judge Roger L. Gregory wrote in the Feb. 5 ruling, citing the majority 1993 opinion in Shaw v. Reno authored by Justice Sandra Day O’Connor as part of a narrow 5-4 majority.
When Republican lawmakers in North Carolina, led by Sen. Bob Rucho and Rep. David Lewis, redrew the maps for congressional and state legislative districts in 2011, they packed black voters into the 12th District, which follows Interstate 85 from Greensboro to Charlotte, and in the 1st District on the northeastern coastal plain, while also cramming liberal Democrats into the new 4th District, which resembles a divining rod in its circuitous path through parts of Raleigh, Burlington and Fayetteville. As a predictable result, Democrats went from holding seven out of 13 of the state’s congressional districts to only three of 13 in the span of two election cycles.
The order from the panel of judges exposes the disingenuousness of Rucho and Lewis’ professed concern about “the importance of minority voting rights” as justification for redrawing the lines for the 1st and 12th districts in such a way that black voting age population would exceed 50 percent. Despite the fact that blacks did not make up a majority of the voting-age population in earlier versions of the 1st and 12th districts, Gregory noted, “African-Americans’ preferred candidates easily and repeatedly won reelection under those plans.”
In other words, the strengthening of black voting power in the 1st and 12th districts was a cynical solution to a problem that didn’t exist, and the true motive of the maps was to bleed black voters out of the adjacent districts to make them safe for Republican candidates.
Thomas Hofeller, the mapmaker retained by Rucho and Lewis, said as much in his testimony.“It wasn’t about — totally about the 12th District,” he said. “It was about what effect it was having on the surrounding districts…. The 6th District needed to be made better for Republican interests by having more Democratic voters removed from it, whereas the 5th District had a little more strength in it and could take on some additional Democratic areas — into Forsyth County.”
The courts have long held that partisan gerrymandering is constitutional while racial gerrymandering is not.But race and partisanship are not so easily disentangled in North Carolina politics: The Republican lawmakers in charge of the 2011 redistricting effort effectively broke up a black-white progressive electoral coalition that for decades supported a Democratic majority in Raleigh and in the congressional delegation.
The new ruling comes across as a rebuke to the Republican-controlled General Assembly. Paradoxically and insidiously, the new maps strengthened black political representation while frustrating black lawmakers’ ability to advance a progressive agenda on behalf of their constituents.
In its finding that the 2011 congressional redistricting plan violates the Equal Protection Clause of the 14th Amendment, the three-judge panel reached back to Shaw v. Reno, which also dealt with the 12th District in North Carolina.
Justice O’Connor used the word “bizarre” in her opinion to describe the serpentine shape of the district, and quoted approvingly from an unidentified state lawmaker, who said, “If you drove down the interstate with both car doors open, you’d kill most of the people in the district.”
That ruling sent the General Assembly back to redraw the 12th District based on the premise that the 50-percent-plus black voting age population configuration was unconstitutional. Black voting age population in the district was set at 32.6 percent in 1997 and rose to 42.3 percent in 2001 — an arrangement that held until 2011.
Justice O’Connor declared it “unsettling” in her 1993 opinion that the early 1990s redistricting plan resembled “the most egregious racial gerrymandering of the past,” likening it to “political apartheid.” O’Connor’s charge overlooked the fact that not a single African American had been elected to Congress from 1901, when George Henry White left office, until 1992, when Eva Clayton and Mel Watt were elected respectively in the newly drawn 1st and 12th districts.
O’Connor suggested in her ruling that drawing districts to protect black voting rights reinforced “the perception that members of the same racial group… think alike, share the same political interest, and will prefer the same candidates at the polls,” deriding the notion as an “impermissible” stereotype. Meanwhile, her opinion sidestepped the long-held precept that political districts can be drawn around communities of interest.
The ruling might easily have gone the other way.
Justice John Paul Stevens, in his dissent, asked why it was “permissible to draw boundaries to provide adequate representation” for rural voters, union members, Hasidic Jews, Polish Americans and Republicans, but not for “members of the very minority group whose history in the United States gave birth to the Equal Protection Clause.”
What a delicious irony that a conservative Supreme Court opinion should wind up reining in a brazen Republican power grab two decades later.