A divided and short-handed Supreme Court on Monday questioned whether race or politics was the main factor used in drawing the controversial boundaries around two majority-black congressional districts in North Carolina.
The case, on appeal to the Supreme Court after a panel of three federal judges earlier this year found evidence of racial gerrymandering, could serve to clarify what federal law says about how state legislatures can use racial demographics when drawing voting district lines.
The justices on Monday leapt right into the central question on the case, McCrory vs. Harris:
“Is it politics or is it race?” asked Justice Elena Kagan. “If it’s politics, it’s fine; if it’s race, it’s not.”
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The justices’ questioning Monday didn’t reveal how each is leaning, but legal experts expect Justice Anthony Kennedy could be the swing vote on the North Carolina case.
Federal law covering gerrymandering is complex and hard to rule on, said Justice Stephen Breyer.
“The problem is, how does the law permit the creation of (majority-minority districts), and at the same time, prevent the kind of packing that might appear in other cases, which is gerrymandering,” Breyer said.
“And no one, I think, has a good answer to that question,” he said. “There is just slightly better, slightly worse.”
The North Carolina case could result in Supreme Court clarity on how far map architects may legally go when using racial data
Federal law prohibits states from diluting minority voting power, which often leads to the creation of “majority-minority” districts. That helps elect black representation, Breyer said, but also can lead to racial gerrymandering and legal challenges when minority voters appear to be “packed” in.
State and federal judges, including Breyer, the court’s most senior associate justice, have long struggled to set precedents that can speak to a long list of legal questions surrounding the use of racial and political affiliation data when officials draw voting district boundaries.
The case from North Carolina was one of two redistricting challenges premised on racial gerrymandering claims that the Supreme Court heard Monday. The other case was from Virginia.
Paul Clement, the attorney for Republican lawmakers sued in both cases, argued that North Carolina’s Legislature had tried in 2011 to strike the right balance in forming majority-minority districts by using political affiliation data, not race, to draw maps.
Black voters in North Carolina tend to support Democrats, both Clement and the plaintiffs’ attorney, Marc Elias, agreed Monday.
But Clement argued that just because partisan considerations were made in the redistricting process doesn’t mean N.C. Congressional Districts 1 and 12 were racially gerrymandered.
“Race and politics are highly correlated,” said Clement, a former solicitor general in the George W. Bush administration.
“The map drawers – of course, they admitted they took race into account, but they were dealing with a difficult problem,” Clement said.
He said the plaintiffs should have to prove there was a way to draw the maps with fewer black voters while still maintaining partisan balance.
Clement’s mention of an example “alternative map” needed to back up racial gerrymandering claims prompted some discussion among the justices about whether decisions in past redistricting cases would support such a requirement.
Breyer and Kagan, both Democratic appointees, suggested Elias and the plaintiffs had already shown direct evidence suggesting race had played too much of a role when lawmakers approved the maps. They suggested that an alternative hypothetical map wouldn’t be the only way to prove racial gerrymandering.
Justice Samuel Alito, a Republican appointee, questioned whether Elias was relying on “double hearsay” testimony to claim North Carolina lawmakers were motivated primarily by race in the redistricting process.
“The question is, what was the basis for it?” Alito asked. “Was it politics, as they say, or was it race? If no one can point to a way of achieving the political objective other than through the map that was drawn, then that’s evidence that politics was the reason for it.”
North Carolina’s appeal to the Supreme Court comes five years after the contested maps were drawn and promptly challenged in state courts. Already, the legal battle has caused election delays and bitter partisan fights.
Three times, lower state courts have sided with North Carolina. Earlier this year, a panel of three federal judges ruled against the state and ordered lawmakers to go back to the drawing board.
The case centers on Congressional Districts 1 and 12.
District 1, a seat held by U.S. Rep. G.K. Butterfield, is in the northeastern part of the state, and both the old and new 2016 maps include Durham and areas just north of Wake Forest.
District 12, represented by U.S. Rep. Alma Adams, changed drastically following 2016 court-mandated redistricting. The congressional district once snaked roughly along Interstate 85 to include the city of Charlotte, much of Winston-Salem and Greensboro. Now it includes most of Mecklenburg County.
Both Butterfield and Adams are black Democrats.
The Supreme Court’s decision, already months away, could take even longer if the justices elect to wait on a judicial nominee from President-elect Donald Trump. If the eight-member bench moves ahead, Kennedy would be the likely swing vote to avoid a 4-4 deadlock.