North Carolina’s Republican-led legislature passed a new congressional map on Friday to comply with a federal district court ruling that struck down the previous map over unconstitutional racial gerrymandering in the 1st and 12th Districts. Earlier use of a majority-black threshold ran afoul of the Supreme Court’s 2015 precedent Alabama Legislative Black Caucus v. Alabama. Since the Supreme Court declined to stay the lower court decision, the state will almost certainly use new districts for the 2016 election cycle. However, there is no guarantee that the legislature’s new districts will satisfy the district court, which must approve any new map.
Republican legislators claim to have completely disregarded race when drawing their new gerrymander, though that didn’t stop them from making sure that 10 of the 13 districts still voted for Mitt Romney, even though he only narrowly carried the state in 2012. The GOP’s claim is not only dubious, it also opens up the map to a challenge under the Voting Rights Act because the use of race must be narrowly tailored in certain minority-heavy districts protected by the law, such as the 1st. Map-makers offered no justification for dropping the use of race so the court could force modest changes, an outcome that seems especially probable in the 1st District.
Appeals of district court three-judge panel rulings proceed directly to the Supreme Court. Since the high court already declined to stay the lower court’s ruling, it seems highly unlikely that they will overturn the district court on the merits, especially after Antonin Scalia’s death deprived conservatives of their five-to-four majority. That could give the district court leeway to impose broader changes upon North Carolina’s map beyond just the 1st District, and perhaps they will emulate another recent court ruling in Virginia, which created another district likely to elect a black candidate.
In 2011, Republicans drew the 12th District from Charlotte to the Triad cities of Greensboro, High Point, and Winston-Salem. A classic form of racial packing, it corralled black voters into a single district while making all of the surrounding districts heavily white. The newly-enacted map limits the 12th solely to Charlotte and Mecklenburg County. It is no longer majority black, but black voters are a decisive majority in a Democratic primary and are likely to elect their candidate of choice.
However, the legislature’s new 13th splits the Triad three ways and favors a white Republican, but it doesn’t have to be this way. The map below offers one possible fairer alternative:
Uniting the Triad into a single 13th District as seen in this modification of the legislature’s map could have resulted in a compact, 33 percent black seat. Black voters form a clear majority in a Democratic primary there, and this 13th would consequently increase black representation by one member, in addition to the black member who would likely be elected in the 12th.
Plaintiffs in the racial gerrymandering lawsuit quite plausibly might press for another substantially black district, and the Democratic Party is pledging to fight on in court as well. If the district court again rejects the Republican legislature’s gerrymander, it might implement its own map. Given how egregiously gerrymandered both the new and old Republican maps are, there is a possibility of a court-drawn plan affecting many districts beyond just the 13th.
Changes to the 1st District would likely have a muted political impact since the court might merely require modest alterations to narrowly tailor the use of race there. It would take a fundamental redraw of the map such as entirely removing Durham from the 1st to produce a dramatic partisan shift against Republicans in an adjacent conservative district such as the 2nd.
Republicans’ admission that their map’s overriding goal was to preserve their 10 to three edge in party representation theoretically could result in it being invalidated as an unconstitutional partisan gerrymander. In 2004’s Vieth v. Jubelirer, the Supreme Court ruled that partisan gerrymandering potentially could be found unconstitutional, but it was unable to come up with a standard to determine when to do so. The district court could possibly choose their own standard, allowing them to strike down the legislature’s map without the threat of a conservative Supreme Court majority overturning them.
Ultimately, there are simply too many unknowns to say with certainty what the likely endgame is in this litigation, but we should gain a lot more clarity in the next few weeks when the district court reviews the legislature’s new map.