By Lea Kayali (PO ‘19)
Race matters. Police brutality, immigration, and criminal justice reforms—these hot-button debates reflect how racial issues are front and center in American politics. As racialized politics percolate through party platforms, Americans’ political identity is increasingly determined by demographics. White nationalism is on the rise in the self-proclaimed “alt-right,” and identity politics dominates the left as well. Religious, ethnic, and racial minorities are increasingly alienated by white conservatives and vice versa. The link between race and politics today is a thorny one, since diluting the minority vote is politically advantageous for conservatives—an unpleasant yet unavoidable truth since racial minority communities are often politically coherent and liberal, meaning they usually vote for Democratic candidates. Central to this is the practice of gerrymandering—the redistricting of voting regions for partisan benefit. Constitutional questions regarding racial discrimination are thus ensnared in the borders between electoral districts. Gerrymandering runs deep into the connection between race and politics, raising the question: when redistricting disproportionately impacts people of color, is the Fourteenth Amendment, which guarantees equal protection under the law, violated? This practice remains a heated debate within our justice system, with gerrymandering cases constantly coming to the docket of the Supreme Court. These cases act as a springboard for discussions on how the courts should address redistricting, minority voters’ rights, and political representation at large.
As the most recent gerrymandering case to be decided, the opinion in Cooper v. Harris (2017) holds extreme importance for legislative representation and civil rights. When a court strikes down an instance of racial gerrymandering, it can either combat voter dilution or gut the prolific Voting Rights Act (VRA), depending on the context. Established in 1965 under the Johnson administration, the VRA was created to abolish the obstacles that prevented minorities from voting in the era of segregation. Since that time, the VRA has come into play each time the question of racial discrimination overlaps with gerrymandering. In this paper, I trace the precedent leading up to Cooper v. Harris and argue that the Court’s decision in Harris allows for future, more robust challenges to gerrymandering where racial discrimination may effectively be taking place.
Redistricting—the process by which states draw up legislative districts for representation purposes—varies from state to state. In most states, like North Carolina, the state legislature has the authority to compose these districts, though other states use methods like bipartisan councils, independent authorities, or gubernatorial processes. Redistricting opens the door to gerrymandering. Gerrymandering is especially common when state legislatures have the power over district lines. Currently, gerrymandering primarily on the basis of political affiliation has not been ruled unconstitutional, but gerrymandering on the basis of race has.
North Carolina’s Districts 1 and 12 have large African American populations, but prior to the redistricting that this case concerns, African Americans did not make up a majority of the voting-age citizens in either district. Therefore, neither was a majority-minority district. Regardless, these regions consistently elected the preferred candidate of the majority of African American voters, meaning that the districts were acting in lock-step with minority interests. Courts call such districts “crossover” districts, and in this case—as in most cases—such districts vote Democrat. When the chairs of the redistricting committee in North Carolina (State Senator Robert Rucho and Representative David Lewis—both Republicans) spoke publicly of their redistricting goals, they suggested that, in District 1 at least, they intended to create a majority-minority district in order to comply with the Voting Rights Act. In District 12 the creators claimed to be acting only in their political interests by creating more Republican-voting districts. Allegedly the representatives had no knowledge of the demographics of those who were being pushed into the new regions. The district court rejected these claims. Seeing as the vast majority of the additions to District 1 were African American households, the court held that racial motivations dominated.
Though the intentions of the mapmakers remain suspect, the fruits of their labors are clear. The resulting district map snakes through neighborhoods, collecting African American voting age citizens along the way. In the wake of this redistricting, Black voters felt that the power of their vote was diluted since they were being packed into a district that was already voting in their interest. The resulting legal action created the dispute in Cooper v. Harris.
In order to prove voter dilution has taken place, courts scrutinize the facts of the case against the standard set in the 1986 case of Thornburg v. Gingles. Gingles establishes that if the following three threshold conditions apply, and further specific factual conditions are established, then the state has good reason to create a majority-minority district:
- A “minority group” must be “sufficiently large and geographically compact to constitute a majority” in some reasonably configured legislative district,
- the minority group must be “politically cohesive,”
- a district’s white majority must “vote sufficiently as a bloc” to usually “defeat the minority’s preferred candidate.”
On the flip side, if one of these conditions is not met but a community is nonetheless packed into a majority-minority district, it is also likely that voter dilution occurred. In Harris, the majority held that voter dilution had taken place and further questioned the other reasons stated for creating the district. Ultimately, Justice Kagan, in delivering the opinion of the Court, created new guidelines for racial gerrymandering cases that will define the future of the issue, providing coming sessions of the Supreme Court the tools to regulate and potentially abolish political gerrymandering.
The justices in the majority pointed out an important nuance of political gerrymandering: when politicians pack Democrats into districts, they are often effectively diminishing minority voting power. In cases of gerrymandering, like in Harris, creators of the district are not just Republican and the constituents Democrats; the map makers are White and the citizens are Black. Though political gerrymandering is currently constitutional, the line between political and racial motivations is a hard line to draw. In District 1, where the defendants claimed that the redistricting was to comply with the VRA, the racist undertones were even clearer. By diluting the Black vote, this redistricting did precisely the opposite of what the VRA was designed to do. In previous cases, the Supreme Court established that if racial reasons predominate in redistricting, the Equal Protection Clause of the Fourteenth Amendment is violated. In this case, the justices lowered the hurdles for plaintiffs making such a claim.
In delivering the majority decision, Justice Kagan explained that: “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.” Essentially, Justice Kagan purported that even if race predominates in redistricting in order to achieve political aims, the redistricting is still unconstitutional. Kagan took this claim one step farther, asserting that the Court “[has] construed that ban to extend to ‘vote dilution’—brought about, most relevantly here, by the ‘dispersal of [a group’s members] into districts in which they constitute an ineffective minority of voters.”
Additionally, the majority covered new ground on the evidentiary standard needed to establish a racial gerrymandering claim. The dissenting justices in Harris believed that, in order to prove that racial gerrymandering took place, the plaintiff must present an alternative district map that accomplishes the same political goals without skewed racial composition. However the majority established that such a map is not necessary: credible trial testimony is sufficient, at least in this case. This part of the ruling widened the path to challenges against gerrymandering in general by lowering the bar to prove racial discrimination in redistricting practices.
The Voting Rights Act, Redistricting, and Precedent
In the past, the Supreme Court has debated the role of race in elections and wove its way through a timeline of seemingly contradicting decisions, all aimed at answering the following two questions: What role can race play in redistricting? And how do we protect the Voting Rights Act in gerrymandering cases? The line of precedent used in Harris characterizes the disputes within the Supreme Court on the constitutionality of gerrymandering and the sanctity of the Voting Rights Act.
Considered the most effective piece of civil rights legislation by many, the Voting Rights Act was passed in 1965 to uphold Americans’ Fourteenth and Fifteenth Amendment rights: the right to equal protection under the law and the right to vote for all races. Previously, states passed a slew of laws designed to keep Black Americans out of the voting booths. The VRA established several methods of ensuring that minority voters would have proportional voting power. Some of parts of the VRA concern redistricting—perhaps the most controversial way to affect the voting power of communities. Depending on the political/geographic context, minority voters may need to constitute a sizeable minority or even majority in order to have their political interests represented. In other cases, minority interests are represented in crossover districts, so majority-minority demographics are unnecessary. As such, homogeneous racial composition in a given legislative district can either prevent minority voters from being drowned out or dilute the power of their vote. In order to address this nuance, the VRA established federal examiners to review voting policy on a case by case basis. Section 5 of the VRA placed historically segregated states under scrutiny by federal regulation. The language of the VRA addressed obstacles keeping minority voters from registering such as literacy tests and registration taxes. It also opened the door to litigation challenges against minority voter dilution, compelling states to carve up representative districts with equal representation in mind.
The Supreme Court has heard over a dozen related cases which were cited throughout the opinion in Harris. Highlighting a few of these landmark cases helps to characterize the court’s history on the issue. With this in mind, we turn to one of the recent cases relating to racial gerrymandering: Shaw v. Hunt (1996). In this case, two majority Black districts were created by the state, supposedly pursuant to the Voting Rights Act. In other words, the districts were created to avoid minority voter dilution. The more conservative justices, making up the majority, held against the state, restricting its ability to use race in creating district lines. Here, the decision was condemned by civil rights advocates who saw this restriction as an affront to the state’s ability to create districts where minority voters had enough power. In 1999, the Court heard Hunt v. Cromartie, or Cromartie I. Here, the conservative majority allowed redistricting that displaced primarily the Black Voting Age Population, so long as political motivations dominated over racial ones. Importantly, this case affirmed that gerrymandering on the basis of political interest was constitutional. Then, in 2001, liberal justices held the majority in Easley v. Cromartie, also known as Cromartie II. In this case, the Supreme Court handed down an opinion that required more evidence to establish racial gerrymandering. Specifically, in delivering the opinion, Justice Breyer commented that “the primary evidence upon which the District Court relied [in the Cromartie II] for its ‘race, not politics,’ conclusion is evidence of voting registration, not voting behavior; and that is precisely the kind of evidence that we said was inadequate the last time this case was before us.” The Cromartie II decision was meant to reopen opportunities for redistricting in compliance with the Voting Rights Act by making it more difficult to present racial motivations as predominating. Since then, however, this decision has backfired on its liberal foundations and has been used to pack minorities into crossover districts on a political basis.
Over a decade later, the Court heard Alabama Legislative Black Caucus v. Alabama (2015). In this case, the liberal justices held the majority, reacting to what they saw as an abuse of the precedent from the Cromartie cases. They set forth a “narrow tailoring” requirement that requires states to provide “a strong basis in evidence” for using the VRA to redistrict with accordance to race. The decisions in Alabama and Cromartie II together established the evidentiary requirements foundational to the most recent racial redistricting cases.
In 2016, before Harris was decided, the Court heard another racial gerrymandering case: Bethune Hill v. Virginia Board of Elections. In this case, the Court decided on a variety of logistic issues in scrutinizing race-based redistricting. The opinion stated that even when redistricting respected traditionally accepted principles of the process, the result can still be race-based discrimination. In making this assessment, the Bethune Hill precedent forced courts to take a holistic consideration of the context of the district into account. This holistic assessment requirement captures the undertones of race and politics that contribute to potentially discriminatory acts of redistricting. Thereby Bethune Hill’s guidelines made it easier for plaintiffs to argue that racial motivations predominated in a state’s decision to redraw district lines.
It is on this foundation that the nation’s highest court turned its attention to Cooper v. Harris. In the majority opinion, Kagan explained plainly that, though claiming to act in compliance with the VRA, the gerrymander actually worked hard against the principles of the Act. By pushing minority voters away from districts where Republican seats may be uncertain and into historically locked-blue districts, redistricting actively diluted the Black vote—which Kagan saw as a clear violation of Fourteenth Amendment rights. Yet the decision in Harris is not simply the next step to the left in this twirling dance between gerrymandering and the Supreme Court. What is most crucial about the majority’s decision here is that it married the concept of racial gerrymandering and redistricting for other purposes. Previously, states got away with shifting the demographics of districts by pulling the political gerrymandering or VRA compliance card; now, these reasons always remain suspect if there is evidence that race is a key characteristic. Essentially, if most of the voting age citizens who were redistricted are Black, the constitutionality of the gerrymandering should be, according to Kagan, under question. Furthermore, in stating that an alternate map need not be necessary to prove racial gerrymandering, the Court established a precedent that can be used to challenge the practice of gerrymandering more frequently.
Importantly, when partisanship is increasingly linked to race—such that racial minorities are often Democrats—the Court’s limit on racial gerrymandering in Harris may functionally pave the way to challenging partisan gerrymandering. Since political motivations are often used as a scapegoat for racial ones, it becomes harder to determine when a district is drawn that suppresses minority rights—and when it is a constitutional act of political gerrymandering. Cooper v. Harris opens up more possibilities for challenging redistricting that would otherwise be swept away as constitutional. In doing so, it paves the way for this year’s much-anticipated Gill v. Whitford case, which challenges the notion of gerrymandering entirely. In this case, the Court will surely turn to the precedent set in Harris, though the racial component of the Harris precedent is less salient in Whitford. Harris will still be important in the decision of Whitford, because it has altered the framing courts use to think about the intersection of discrimination and gerrymandering. The Harris opinion applies precedent to widen the range of possible cases wherein the court may determine that adverse effects are primarily race-based. Thereby it increases the possibility for cases which are not explicitly framed as such to be read as unconstitutional. In other words, I argue that a faithful application of the precedent in Harris would require courts to accept challenges to districting that, while perhaps drawn for the purpose of partisan benefit, functionally gerrymander on the lines of race.
On whole, Harris’s precedent pushes the issues of voting rights and fair representation into the foreground of all future gerrymandering cases. As such, voting rights advocates who seek to abolish political gerrymandering now have more room to make the case that political gerrymandering—when laid onto the context of American politics today—may be unconstitutional. Cooper v. Harris is a case not only intertwined with important civil rights history, but it is a decision that could serve as a crucial turning point towards a new era in American politics, starting with the upcoming Gill v. Whitford case. If the Supreme Court embraces the precedent set in Harris, then the future of gerrymandering may already be determined. Whatever the outcome moving forward, Harris will surely alter how democracy is drawn up in America.
 In the 2016 presidential election, this phenomena became undeniable. Party platforms incorporated the language of race, ethnicity, and religion more heavily than they had in the past. Donald Trump’s campaign referred to immigrants from Latin American and Middle Eastern descent in highly controversial ways, while Democratic platform explicitly addressed hot-button topics concerning minority communities (such as immigration, police brutality, etc.) to mobilize those communities for political gain. See, e.g., Derek Thompson, “Donald Trump’s Language Is Reshaping American Politics,” The Atlantic, February 15, 2018, https://www.theatlantic.com/politics/archive/2018/02/donald-trumps-language-is-reshaping-american-politics/553349/; Alexander Burns and Jonathan Martin, “Clinton Pushes Minority Turnout as Trump Tries to Rally His Base,” The New York Times, November 3, 2016, https://www.nytimes.com/2016/11/04/us/politics/campaign-trump-clinton.html.
 “Partisanship and Political Animosity in 2016: Highly negative views of the opposing party – and its members”, Pew Research Center, June 22, 2016, http://www.people-press.org/2016/06/22/partisanship-and-political-animosity-in-2016/.
 “A Deep Dive into Party Affiliation: Sharp Differences by Race, Gender, Generation, Education”, Pew Research Center, April 7, 2015, http://www.people-press.org/2015/04/07/a-deep-dive-into-party-affiliation/#.
 Cases which challenge acts of gerrymandering are appealed to the Supreme Court each year, many of which the Court takes up. In the last 20 years, the Court has seen nearly a dozen gerrymandering cases. See Cooper v. Harris, 581 137 S.Ct. 1455 (2017).
 Amy Howe, “Opinion analysis: Court strikes down N.C. districts in racial gerrymandering challenge”, SCOTUS Blog, May 22, 2017,
 See generally, Cooper v. Harris, supra note 5.
 District 1, 4 (unchallenged in Harris), and 12: before and after the Supreme Court decision. Image from Corey Risinger, “New map draws unexpected consequences in 2016 primaries,” The Daily Tar Heel, February 21, 2016, http://www.dailytarheel.com/article/2016/02/delayed-congressional-primaries-redistricting.
 Interestingly, according to the Voting Rights Act, various districts within North Carolina have previously had to clear any voting-related policy changes with the Department of Justice in order to ensure that the state is not repressing minority voter. Historically, the federal government has had to intervene with North Carolina’s history of voter suppression. Cooper v. Harris, supra note 5, at 1464-1465.
 See “Redistricting Process,” National Conference of State Legislatures, online at: http://www.ncsl.org/research/redistricting/redistricting-process.aspx.
 In Shaw v. Reno in 1993, the Court published the first groundbreaking decision on the unconstitutionality of race-based gerrymandering. See Shaw v. Reno 509 U.S. 630 (1993). In Cromartie I, the Court held that political gerrymandering was not unconstitutional. See Hunt v. Cromartie 532 U.S. 234 (2001).
 Cooper v. Harris, supra note 5, at 1459-1464.
 Thornburg v. Gingles, 478 U. S. 30 (1986).
 Cooper v. Harris, supra note 5, at 1460.
 Cooper v. Harris, supra note 5, at 1460-1461.
 Prior to Harris, cases such as Shaw v. Reno, supra note 12, Shaw v. Hunt, 517 U.S. 899 (1996), Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015), were all predicated on the fact that race-based gerrymandering violated rights under the Equal Protection Clause of the Fourteenth Amendment.
 See generally, Cooper v. Harris, supra note 5.
 Justice Alito, in his dissent, cited Easley v. Cromartie, 532 U.S. 234 (2001), as a precedent to the map requirement. Kagan countered by claiming that though useful, this case does not insinuate that an alternate map is necessary. See ibid.
 See, e.g., Office of Congressman Sandy Levin, “Voting Rights,” last updated October 1, 2014, accessed February 20, 2018, https://levin.house.gov/issue/voting-rights; The Anti-Defamation League, “The Voting Rights Act,” July 27, 2015, accessed February 20, 2018, https://www.adl.org/news/article/the-voting-rights-act; John Lewis, “The Voting Rights Act: Ensuring Dignity and Democracy,” Human Rights Magazine 32 (2005), https://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol32_2005/spring2005/hr_spring05_act.html; The Department of Justice Civil Rights Division, “Introduction to Federal Voting Rights Laws,” last updated June 19, 2009, accessed February 20, 2018, https://www.justice.gov/crt/introduction-federal-voting-rights-laws-0.
 The Voting Rights Act, 52 U.S.C. § 10101-10304 (1965).
 While Section 5 has been extended by congress continuously since the VRA’s establishment, the Supreme Court’s decision in Shelby County v, Holder effectively nullified its enforcement. See generally, Shelby County v, Holder, 133 S. Cr. 2612 (2013).
 See the Department of Justice, supra note 21.
 Shaw v. Hunt, supra note 17.
 Linda Greenhouse, “The Supreme Court: The Decision; High Court Voids Race-Based Plans for Redistricting,” The New York Times, June 14, 1996, http://www.nytimes.com/1996/06/14/us/supreme-court-decision-high-court-voids-race-based-plans-for-redistricting.html.
 Hunt v. Cromartie, supra note 12.
 Easley v. Cromartie, supra note 20.
 Charles Gregory Warren, “Towards Proportional Representation: The Strange Bedfellows of Racial Gerrymandering and Equal Protection in Easley v. Cromartie,” Mercer Law Review 53 (2001): 945-966.
 Alabama Legislative Black Caucus v. Alabama, supra note 17.
 Bethune Hill v. Virginia State Bd. of Elections, 137 S.Ct. 788 (2017).
 Cooper v. Harris, supra note 5..
 Adam Liptak, “When Does Political Gerrymandering Cross a Constitutional Line?”, The New York Times, May 15, 2017, https://www.nytimes.com/2017/05/15/us/politics/when-does-political-gerrymandering-cross-a-constitutional-line.html.