'If It's Politics, It's Fine.' U.S. Supreme Court Justices Question N.C. Redistricting

Dec 6, 2016
Originally published on January 16, 2017 10:09 am

The U.S. Supreme Court is considering the distinction between race and politics in North Carolina's redistricting process. The nation's highest court heard arguments Monday in a case that struck down two of North Carolina's congressional districts. WFAE's Michael Tomsic joined Mark Rumsey for analysis of the arguments.

This is not the first time the Supreme Court has considered how North Carolina redraws its voting districts.

That's a point the attorney representing the state made in his opening argument - this should all be pretty familiar to the justices by now. It's the fifth case the Supreme Court has taken regarding Congressional District 12, which has snaked from Charlotte to Greensboro. The other district in this case has also been here before. Congressional District 1 is an amorphous blob in the northeastern part of the state.

What have the justices ruled previously?

It's a mixed bag that comes down to this question: Is it a racial gerrymander? In other words, was race the dominant factor and did lawmakers fail to show that was necessary?

The justices ruled Democrats were guilty of that in the 1990s. This is their first time considering how North Carolina Republicans changed the lines.

How did the attorney for the Republican lawmakers make his case Monday?

Much of the argument focused on Congressional District 12. Paul Clement said it "was avowedly a political draw." A bit later he said this is the kind of case "where the state says, why did we do it? Politics." Republicans changed the lines to win themselves more seats.

That's how the state is defending the law?

Absolutely. It's rare to hear lawmakers admit that blatantly partisan motive. But that's the strategy once redistricting hits the courts because the Supreme Court has said that's OK. Here's how Justice Elana Kagan put it during the arguments yesterday:

"Is it politics or is it race?" she asked. "If it's politics, it's fine; if it's race, it's not."

Why have the justices set that precedent?

Judges have taken the approach they should not be answering a political question. With the American separation of powers, the idea is that those questions should be left to legislatures. After all, people can vote lawmakers out of office if they don't like the answers. 

There's been plenty of debate over whether courts actually stay out of political questions. But at least on redistricting, the Supreme Court has held that playing politics is OK as long as it doesn't cross a racial line.

In practice though, how clear is that line? The data in this case show African-Americans overwhelmingly vote for Democrats.

It's clear as mud, exactly for the reason you just described. Courts have reached different conclusions on the same set of facts in North Carolina and many other states. As we mentioned earlier, one district in this case has now made it to the Supreme Court five times!

There was an interesting part of the argument Monday where the justices and attorneys were essentially lamenting what a rabbit hole redistricting has become. Justice Stephen Breyer admitted the Supreme Court has established a set of standards that lower courts are having difficulty applying. And keep in mind, he's the justice who wrote some of those opinions.

Breyer also took a moment to remind everyone of the history that's led to this point. What did he say about that?

He said, let's go back a few decades when some states had many African-American citizens but no African-American representatives. At that point, the U.S. Justice Department and the courts signed off on the creation of some majority-minority districts.

Fast forward to now. Breyer said: "The problem is, how does the law permit the creation of that - and at the same time - prevent the kind of packing that might appear in other cases, which is gerrymandering. No one, I think, has a good answer to that question."

You mentioned the conflicting opinions on this round of North Carolina redistricting. The U.S. Justice Department initially cleared it. Then the state Supreme Court approved those maps in a related case. How did that fit into the arguments?

Several justices asked about them. They have to decide whether the lower court committed a clear error. In this case, that lower court is a federal three-judge panel that struck down the congressional districts. The attorney arguing against the state told the justices to trust those lower court judges.

Chief Justice John Roberts and Justice Ruth Bader Ginsberg asked, what if we were instead reviewing the state Supreme Court case that upheld the maps? Would you want us to trust that lower court? Roberts said the attorney's answer was "not terribly helpful." 

How soon could a ruling come?

It generally takes a least a month. Also, this may not be the last redistricting case out of North Carolina this term. A different federal three-judge panel struck down the state House and Senate maps. Lawmakers want the Supreme Court to weigh in on that too.

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