Academic journal article Harvard Law Review

Fourteenth Amendment - Equal Protection Clause - Racial Gerrymandering - Cooper V. Harris

Academic journal article Harvard Law Review

Fourteenth Amendment - Equal Protection Clause - Racial Gerrymandering - Cooper V. Harris

Article excerpt

Regardless of one's position on the role that race should play in modern politics, the racial polarization of American voters is undeniable: in 2016, black and Latino voters preferred the Democratic presidential candidate by eighty and thirty-six points respectively, while white voters preferred the Republican presidential candidate by twenty-one points. (1) Perhaps it is no surprise, then, that both party and race come into play when sorting voters to achieve either partisan or racial advantage. One method that states use to achieve such advantage is redistricting--the redrawing of district boundaries after each census, intended to ensure that Congress and state legislatures remain representative. (2) Redistricting plans can be gerrymandered to dilute racial or political minorities' votes by "packing" minority voters into a few districts or "cracking" minority groups across many districts. (3) Although gerrymandering is often discussed as a partisan issue, (4) the Court has dealt with it only as a matter of equal protection for racial minorities, such that racial gerrymandering is unconstitutional, (5) whereas partisan gerrymandering is not. (6)

Last Term, in Cooper v. Harris, (7) the Court affirmed that two North Carolina congressional districts were unconstitutional racial gerrymanders. (8) The fate of one of the two districts, District 12, rested on whether it was race or politics that predominated the legislature's decision to sort voters into the district. (9) Although gerrymandering jurisprudence attempts to draw a clear line between race and party, that line is difficult to maintain, especially when the Court in Harris admitted that the underlying facts of the case could plausibly point in either direction. (10) Given the independent harms of partisan gerrymandering and the unique entanglement of race and party, it is both unnecessary and futile for courts to tackle the impossible challenge of distinguishing between racial and partisan gerrymandering. Rather, the fact that Harris could easily have gone the other way suggests the need for an additional standard that addresses partisan gerrymandering directly and thus allows courts to police more accurately the affront to democracy that both racial and partisan gerrymandering represent.

After the 2010 census, North Carolina redrew its congressional districts to reflect population changes, in compliance with the U.S. Constitution. (11) Through the Equal Protection Clause, the same Constitution prevents a state, "without sufficient justification, from 'separat[ing] its citizens into different voting districts on the basis of race.'" (12) Race-based lines, therefore, are unconstitutional where (1) "race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district," (13) and (2) the district's design cannot withstand strict scrutiny. (14) To pass strict scrutiny, the state must prove that its race-based redistricting scheme is "narrowly tailored" to meet a "compelling interest." (15) Compliance with the Voting Rights Act of 1965 (16) (VRA)--which prohibits voting practices that racially discriminate and, of particular relevance to redistricting, prohibits "vote dilution" that diminishes the strength or effectiveness of a racial minority group's vote--has been assumed by courts to be a compelling interest. (17) Nevertheless, it is not a panacea for Equal Protection challenges; narrow tailoring requires that the legislature had "good reasons" to conclude that the VRA compelled its action. (18)

Two of the congressional districts that the North Carolina state legislature redrew after the 2010 census--District 1 and District 12--were at issue in Harris. (19) Both districts had been designed as majority-black districts after the 1990 census (20) and had been challenged by white North Carolina residents as unconstitutional racial gerrymanders, to varying degrees of success. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.