When the U.S. Supreme Court ruled this week that North Carolina lawmakers relied too much on the race of voters in their 2011 drawing of congressional district lines, some were surprised to see Justice Clarence Thomas aligned with more liberal justices with whom he often disagrees.
Michael Gerhardt, a UNC-Chapel Hill law professor with a specialty in constitutional law, said Tuesday that he was not so flabbergasted.
“Historically, Justice Thomas has been quite critical of the use of race as a basis for any form of government action,” Gerhardt said.
Thomas, a critic of affirmative action, has been described by legal analysts as a justice who believes that colorblindness in government is best for African-Americans.
Thomas opposed race-based districts in the 1990s, when they were intended to help minority voters, and did again Monday, when they were portrayed as hurting minority voters.
Republicans conceded that race played a role in the drawing of the 1st Congressional District, which the challengers said was “akin to a Rorschach inkblot” weaving through 24 counties and containing only five whole counties. The district was mostly in the northeastern part of the state and included Durham, Elizabeth City, Roanoke Rapids, Rocky Mount, Goldsboro and New Bern. The mapmakers said race had been considered to comply with the Voting Rights Act.
Gerhardt said the North Carolina redistricting case was not as clear-cut on the use of race when it came to the 12th Congressional District, which has been described as “snakelike,” stretching from Charlotte along the Interstate 85 corridor into Greensboro. Republicans contended that black voters were added to that district for partisan gain in other districts.
In a dissent joined by Chief Justice John Roberts and Justice Anthony Kennedy, Justice Samuel Alito acknowledged the court’s prior allowance for partisan gerrymanders.
“Politics and political considerations are inseparable from districting and apportionment, and it is well known that state legislative majorities very often attempt to gain an electoral advantage through that process,” Alito wrote. “While some might find it distasteful, our prior decisions have made clear that the jurisdiction may engage in constitutional political gerrymandering.”
Thomas broke with the three, though, in a ruling that could have a larger impact on states where lawmakers shaping congressional and legislative lines have used race as a mere proxy for partisanship.
“The interesting thing here is that Justice Thomas seems to have been persuaded that the use of race was a basis,” Gerhardt said.
Thomas wrote briefly to concur with the opinion by Justice Elena Kagan. He said he agreed that “race was North Carolina’s predominant motive in drawing the district.”
“This is the same conclusion I reached when we last reviewed District 12,” he wrote.
“The Court reached the contrary conclusion” in that 2001 case, so Monday’s ruling “represents a welcome course correction,” he wrote.