Promoted from the diaries. Roguemapper will be delivering a presentation on the first half of this post at a public hearing on redistricting at Asheville-Buncombe Technical Community College this Thursday, July 7. Click here for details, and if you're in the area, please come out to support him. - David
This will be the first in a two-part series examining the proposed North Carolina congressional maps that were unveiled by the Republican General Assembly on July 1st. In this diary I'll be outlining my views on the legality of the proposed NC-01 and NC-12 districts within the context of the Voting Rights Act as well as relevant Supreme Court decisions. In the other diary I'll look at the political landscape of the proposed districts with an emphasis on the electoral prospects of the current Democratic incumbents.
If anyone here is still unfamiliar with the current proposal, below is a map of the Rucho-Lewis congressional redistricting scheme. The two districts that I'll be discussing here are the yellow NC-01 district in the northeast Coastal region and the orange NC-12 district that runs along I-85 from Charlotte to the Triad. My assertion below will be that both of these proposed districts are illegal, though for very different reasons. In my view, the proposed NC-01 district features illegal retrogression in no less than five covered jurisdictions; the proposed NC-12 district is an illegal racial gerrymander in violation of Shaw v. Reno and its progeny.
NC-01 and Section 5 Retrogression
In North Carolina, the Section 5 preclearance requirement applies to 40 counties, mostly in the eastern Coast region, the upper Piedmont, and the Sandhills. In 1991 the General Assembly drew NC-01 as the state's first majority-minority district in response to "the Gingles District Court's findings of a long history of official racial discrimination in North Carolina's political system and of pervasive racial bloc voting." The current district, as revised following the above-quoted Shaw v. Reno decision and the 2001 round of redistricting, encompasses the African-American communities in 21 of North Carolina's 40 Section 5 counties. Due to demographic changes over the past decade, the current NC-01 district has dropped to 47.8% African-American VAP and needs to pick up about 97,500 people.
This 47.8% figure therefore provides the 'retrogression touchstone' for the 21 counties that are Section 5 covered jurisdictions in whole or in part within the current NC-01 district. Moreover, to quote the statement released in conjunction with the General Assembly's redistricting proposal: "Under the decision by the United States Supreme Court in Strickland v. Bartlett ... the State is now obligated to draw majority black districts with true majority black voting age population." In order to equalize the NC-01 district's population and to meet its Section 2 obligation of restoring a majority-black VAP, the General Assembly has chosen to draw the African-American community of eastern Raleigh into the proposed district. However, in doing so, the district has pulled out of five Section 5 counties: Beaufort, Craven, Gates, Wayne, and Washington. The African-American communities of these counties would now be placed in the NC-03 district, represented by Republican Walter Jones and with a 71% white VAP.
To quote the Department of Justice Section 5 Guidance:
Alternatives to Retrogressive Plans
There may be circumstances in which the jurisdiction asserts that, because of shifts in population or other significant changes since the last redistricting (e.g., residential segregation and demographic distribution of the population within the jurisdiction, the physical geography of the jurisdiction, the jurisdiction’s historical redistricting practices, political boundaries, such as cities or counties, and/or state redistricting requirements), retrogression is unavoidable. In those circumstances, the submitting jurisdiction seeking preclearance of such a plan bears the burden of demonstrating that a less-retrogressive plan cannot reasonably be drawn.
In considering whether less-retrogressive alternative plans are available, the Department of Justice looks to plans that were actually considered or drawn by the submitting jurisdiction, as well as alternative plans presented or made known to the submitting jurisdiction by interested citizens or others. In addition, the Department may develop illustrative alternative plans for use in its analysis, taking into consideration the jurisdiction’s redistricting principles. If it is determined that a reasonable alternative plan exists that is non-retrogressive or less retrogressive than the submitted plan, the Attorney General will interpose an objection.
The assertion has been made elsewhere that NC-01 cannot be restored to a majority-black VAP, in accordance with Section 2 requirements, without pulling out of some Section 5 counties. Although I initially agreed with this statement, I now realize that it is false. As shown on the map below, by redrawing NC-01 primarily to take in Durham's African-American community rather than Raleigh's, one can easily restore the district to a majority-black 50.2% VAP (versus 50.4% in the proposed map) while not pulling out of any Section 5 areas currently within the NC-01 district. Quite clearly then, a non-retrogressive alternative is readily available and will certainly be made known to the submitting jurisdiction (i.e., the NC General Assembly) by myself before the week is out. One could also tidy up the lines a bit and probably bump up the African-American VAP by a few tenths of a percent by splitting voting districts, which I cannot do on the Redistricting App used to draw this map.
So, to reiterate, since retrogression is obviously not unavoidable with regard to any jurisdictions currently within the NC-01 district, in my view the Rucho-Lewis proposal is clearly in violation of Section 5 and should be denied preclearance. In drawing the map below, it also became clear to me why the Republicans chose to draw the district into Raleigh instead of Durham: Because this map makes it far more difficult to target Rep. Brad Miller (D) by attaching northern Wake County to the upper-tier of the Piedmont and also more difficult to target Dem Reps. Mike McIntyre & Larry Kissell, and to shore up Rep. Renee Ellmers (R), since Rep. Walter Jones (R) must then either keep more of the southern Coast or take part of the eastern Piedmont. These partisan objectives are of course not a permissible justification for drawing a retrogressive map.
NC-12 and Racial Gerrymandering
Below I am quoting the Rucho-Lewis statement in full with regard to the rationale for keeping the I-85 configuration of the NC-12 district:
Current District 12, represented by Congressman Watt, is not a Section 2 majority black district. Instead, it was created with the intention of making it a very strong Democratic District. See Easley v Cromartie 121 S.Ct. 1452 (2000). However, there is one county in the Twelfth District that is covered by Section 5 of the Voting Rights Act (Guilford).
As with Congressman Butterfield, we sought input from Congressman Watt regarding potential options for revising the Twelfth Congressional district. We have accommodated Congressman Watt’s preference by agreeing to model the new Twelfth District after the current Twelfth District.
Following the framework of the district created by the 2001 General Assembly, to the extent practicable and possible, we have again based the Twelfth Congressional District on whole precincts.
Because of the presence of Guilford County in the Twelfth District, we have drawn our proposed Twelfth District at a black voting age level that is above the percentage of black voting age population found in the current Twelfth District. We believe that this measure will ensure preclearance of the plan.
To quote the Shaw v. Hunt ruling that struck down the second iteration of the NC-12 district of the Nineties:
The constitutional wrong occurs when race becomes the "dominant and controlling" consideration. [Miller], at _ (slip op., at 11, 14-15).
The plaintiff bears the burden of proving the race based motive and may do so either through "circumstantial evidence of a district's shape and demographics" or through "more direct evidence going to legislative purpose." Miller, supra, at _ (slip op., at 15). After a detailed account of the process that led to enactment of the challenged plan, the District Court found that the General Assembly of North Carolina "deliberately drew" District 12 so that it would have an effective voting majority of black citizens. 861 F. Supp., at 473.
Appellees urge upon us their view that this finding is not phrased in the same language that we used in our opinion in Miller v. Johnson, supra, where we said that a plaintiff must show "that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district."
Clearly enough, the GOP legislature will argue that the "dominant and controlling" consideration was not race, but rather the partisan purpose of drawing a heavily Democratic district. That said, the Rucho-Lewis statement certainly suggests that the General Assembly deliberately drew the district to maintain "a black voting age level that is above the percentage of black voting age population found in the current Twelfth District." However, this Section 5 rationale for the I-85 configuration of NC-12 was expressly rejected by the Supreme Court during the Nineties.
Quoting again from Shaw v. Reno:
Thus, we do not read Beer or any of our other § 5 cases to give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression. A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression.
Without the legislative record, it is difficult to fully assess the legality of the process that led to the NC-12 version in the Rucho-Lewis plan. On its face, however, the above Section 5 rationale strikes me as contravening Shaw v. Reno and its progeny. That said, it's important to acknowledge that the relevant rulings in tandem are exceedingly difficult to apply. The issue, ultimately, is not whether race was a consideration, but whether it was too much of a consideration, and the answer to this is essentially subjective.
In any event, quoting from the Hunt v. Cromartie ruling:
We can put the matter more generally as follows: In a case such as this one where majority-minority districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance.
In my view, this is likely doable, but I imagine others would argue with that. What is certainly true is that the proposed district packs African-American voters more efficiently and effectively than the current district: The district goes from 43.3% AA VAP to 49.4% AA VAP. In the course of doing so, along with other changes to the map, Kissell's NC-08 district drops from 26.9% AA VAP to 19.3% AA VAP and Miller's NC-13 district drops from 27.2% AA VAP to 14.8% AA VAP. So, it's also worth noting that these two districts encompass the African American communities of another 9 of the state's Section 5 counties, which arguably raises an altogether separate issue in the preclearance process.
To make the long story short, the NC Democratic Party and the NC NAACP have clearly signalled, assuming there were any doubt, that they will challenge the new maps as illegal packing. I'll skip an attempt to forecast the legal proceedings here, since I don't have nearly enough of the relevant details and I'm skeptical that the Hunt v. Cromartie ruling will even matter. What I think it basically comes down to is whether the Supreme Court will favor Shaw or Cromartie, since I think the two rulings are all but irreconcilable. In my view, the current Court would almost surely have gone the other way in 2001. If that's correct, then there's no obvious reason to think that the Supreme Court will uphold the I-85 configuration of the NC-12 district when the right-wing justices would've rejected the less-gerrymandered 1997 version.
Then again, the cynical view would be that they'll have no problem with it now that it's part of a GOP redistricting plan. And I'll just leave this at that.