Academic journal article William and Mary Law Review

Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases

Academic journal article William and Mary Law Review

Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                             1838 I.   RACE OR PARTY                                       1843      A. Background                                       1843      B. Unconstitutional Racial Gerrymandering in Times         of Conjoined Polarization                        1846      C. Section 2 Vote Dilution Cases in Times of         Conjoined Polarization                           1856      D. Implications and Critiques                       1863 II.  RACE AS PARTY                                       1864      A. The Race as Party Cases                          1864      B. Implications and Critiques                       1872 III. PARTY ALL THE TIME                                  1876      A. Party All the Time                               1876      B. Implications and Critiques                       1880 CONCLUSION                                               1882 

INTRODUCTION

An accidental moment of clarity emerged during Paul Clement's December 2016 oral argument rebuttal in the Supreme Court case of Cooper v. Harris. (1) Harris was the latest challenge to two North Carolina congressional districts that the Court had repeatedly examined since its 1993 decision in Shaw v. Reno. (2) Shaw established the cause of action for "an unconstitutional racial gerrymander, (''3) and Harris considered whether the North Carolina legislature engaged in such gerrymandering by making race the "predominant factor" in redistricting North Carolina's Congressional District 12, or whether its actions instead could be explained as a constitutionally permissible attempt to gain partisan advantage. (4)

Clement was arguing that the legislature's choice to shift 75,000 African American voters, many living in Guilford County, from neighboring districts into District 12 was not evidence of the legislature impermissibly making race the predominant districting factor, but simply evidence of partisanship:

First of all, it's all well and good to say they pulled in 75,000 African-Americans or hauled in all these African-Americans. They were all Democrats, as well. And that's why, even there, if you had an alternative map that showed, oh, there's a different way to do Guilford County, and... bring in Democrats and not bring in African-Americans, then you'd have something. But just the fact that they brought in a bunch of African Americans because they were trying to bring in Democrats is about as interesting as the sun coming up in North Carolina, because everybody agrees there's about a 90 percent correlation between race and partisan identity. (5) 

Clement's point was, of course, correct--the most reliable Democratic voters by far in North Carolina are African American (6)--but it subversively undermined not only his argument but also the entire exercise in which the Court engaged. The idea that in southern states, such as North Carolina, it is possible to separate considerations of race from those of party is ludicrous. Not only do white and African American voters in North Carolina tend to prefer different candidates, white voters tend to prefer Republicans and, on an even greater basis, African American voters tend to prefer Democrats. (7) For example, in the final Elon Poll of North Carolina voters before the 2016 presidential election, an astonishing 100 percent of African American voters supported Hillary Clinton, while 67 percent of white voters supported Donald Trump. (8)

Throughout the United States, but especially in the modern American South, the situation is one of "conjoined polarization," as Bruce Cain and Emily Zhang label it: "The more consistent alignment of race, party, and ideology since 1965." (9) As they summarize the social science literature on the phenomenon:

American politics has become decidedly more polarized in the last two decades. By political polarization, we mean the persistent and growing ideological gap between adherents of the two major political parties. … 
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