Monday, May 22, 2017
"Even the worst of among us occasionally makes a right decision even if for the wrong reasons.
"In a deft opinion by Justice Elena Kagan, the court essentially scraps Cromartie’s race vs. party distinction, replacing it with a more lenient rule. Kagan accomplishes this switcheroo in a footnote that will serve as the basis of innumerable future lawsuits, stating that courts may find proof of an unlawful racial gerrymander “when legislators have placed a significant number of voters within or without a district predominantly because of their race, regardless of their ultimate objective in taking that step.” Kagan continues:
So, for example, if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests—perhaps thinking that a proposed district is more “sellable” as a race-based VRA compliance measure than as a political gerrymander and will accomplish much the same thing—their action still triggers strict scrutiny. In other words, the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.
Kagan then reviewed the evidence collected by the trial court, which had concluded that North Carolina’s gerrymander was primarily driven by race and failed to meet strict scrutiny. This finding, Kagan writes, was not “clearly erroneous”—the standard of review in racial-gerrymander cases. Thus, the trial court’s ruling striking down both districts must stand.
Amusingly, Kagan frames her opinion as little more than a pedestrian application of precedent. As election law expert and Slate contributor Rick Hasen writes, however, it is much more than that. The decision, Hasen explains, “means that race and party are not really discrete categories” in states where race is closely tethered to party, especially in the South. That means a legislature can no longer use race as a proxy for party in redistricting, then insist that it was really discriminating against Democrats, not blacks. “This will lead to many more successful racial gerrymandering cases in the American South and elsewhere,” Hasen speculates."
In Cooper v. Harris, the Supreme Court strikes a blow against racial redistricting.