Round three of redistricting cases opens at the Supreme Court

by Sharon McCloskey, NC Policy Watch, August 27, 2015.

It took nearly a decade for North Carolina’s 2001 redistricting plan to wind its way through the courts, resolved finally in 2009, just in time for the next census.

The plans signed into law in 2011 don’t look to be faring much better, as the parties in the legal challenge head back to state Supreme Court on Monday for a third time, this time on remand from the U.S. Supreme Court.

The question for the justices now is whether the 2011 plan survives constitutional scrutiny under the high court’s recent decision in Alabama Legislative Black Caucus v. Alabama, in which the justices held that lawmakers should not apply mechanical racial formulas when drawing voting lines.

For the parties challenging North Carolina’s 2011 plan, the court battle has been a bit like pushing a rock up a hill. Nearly every effort at relief from the state’s highest court has been rejected.

First came the appeal of a lower-court order requiring lawmakers to disclose conversations, emails and the like that they had with staff, consultants and others about the drawing of the maps – an order that was consistent with state law at the time requiring legislative communications to be made public after the redistricting plan became law.

But Republican lawmakers involved in the 2010 redistricting process circumvented that open records requirement by channeling relevant communications through their lawyers, arguing later that, as a result, the communications remained cloaked with the attorney-client privilege.

The state Supreme Court agreed with the lawmakers, writing in the first Dickson v. Rucho opinion that because the state law did not expressly include attorney-client communications, the court would not presume a waiver of that privilege.  It would be up to the legislature to change the law, the justices said, so that communications with attorneys, like other privileged redistricting communications, became public once a plan was enacted.

(The legislature did just the opposite with a bill passed in 2013 keeping attorney-client communications privileged even after a redistricting plan is enacted.)

In the midst of that appeal, plaintiffs asked that Justice Paul Newby recuse himself from participating in the case, citing the more than a million dollars in contributions funneled into his 2012 re-election campaign by the Republican State Leadership Committee — the same entity directing the redistricting plan at issue in the case.

In a one sentence order with no explanation and no indication of who made the decision, the court denied that request.

Next came the appeal of the three-judge panel’s decision upholding the plan as constitutional.

Shortly after it was filed in September 2013, the challengers again asked Justice Newby step aside because of the RSLC money that had infiltrated his campaign.

And again in a one-sentence order with no explanation, the court dismissed the request.

They also asked the court to delay the 2014 election cycle, which would start with candidate filings in February 2014 and primaries in May, until the court ruled on the validity of the plans – something the court had done in 2002 during the previous round of redistricting litigation.

The justices took no action on that request, letting the election cycle proceed as scheduled and under the challenged plan — dismissing the request as moot when it issued its opinion in December 2014.

In that December opinion, the court upheld the 2011 redistricting plan, 4-2, along party lines. (Then Justice Bob Hunter did not participate in the case.)

Plan challengers then appealed to the U.S. Supreme Court, and in April the high court accepted the appeal, vacated the judgment of the state Supreme Court, and sent the case back to that court for further review in light of the Alabama decision.

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Republican state lawmakers in Alabama and North Carolina approached their 2010 redistricting in similar fashion – not surprising given that they operated with guidance and funding from party operatives in Washington.

Both drew voting maps based upon statistical formulas they claim were necessary to avoid Voting Rights Act liability, with little regard to what had been happening on the ground in terms of minority political control.

But that “on the ground” analysis is what’s called for, as Supreme Court Justice Stephen Breyer noted when writing for the majority in the Alabama case.

Discussing the requirement that state voting maps be narrowly tailored to meet Voting Rights Act requirements, Breyer said:

[W]e conclude that the District Court and the legislature asked the wrong question with respect to narrow tailoring. They asked: “How can we maintain present minority percentages in majority-minority districts?” But given §5’s language, its purpose, the Justice Department Guidelines, and the relevant precedent, they should have asked: “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?” Asking the wrong question may well have led to the wrong answer.

“One of the things we think is important in the Alabama case is that the Alabama legislature engaged in a mechanical process when drawing districts that is inconsistent with the sensitive, strict scrutiny and narrow tailoring that the Supreme Court said has to happen in these redistricting plans,” said Eddie Speas, one of the attorneys for the challengers to North Carolina’s plan.

“And North Carolina lawmakers were guilty of this sin twice: First they adopted the rule that they would draw majority – minority districts in numbers proportional to the state’s black population. And then they drew each of those districts to have at least 50 percent total black voting age population.”

What resulted from those directions in both states were maps that packed African-American voters into fewer districts and strengthened the white Republican vote elsewhere.

The takeaway from the Supreme Court’s decision in Alabama, and the upshot for the state Supreme Court on remand, is that a state’s rote application of quotas when drawing voting maps without regard to actual minority political realities on the ground won’t satisfy its obligations under the Voting Rights Act.

That’s been a constant in the court’s body of redistricting law.

Years ago in Bartlett v. Strickland, for example, the court concluded that Voting Rights Act intervention was unnecessary in districts where black voters exercised political control while still a population minority.

“In areas with substantial crossover voting it is unlikely that the [parties] would be able to establish . . . bloc voting by majority voters,” Justice Anthony Kennedy wrote for the court there.  “In those areas majority-minority districts would not be required in the first place.”

The rejection of the rote use of racial quotas has also been a constant for the current justices of the Supreme Court – especially the conservatives.

“The Voting Rights Act doesn’t require the blunt use of quotas,” said election law expert Justin Levitt. “It requires real attention to politics on the ground. That’s entirely consistent with how the court has treated race in other contexts – affirmative action, for example — and inconsistent with how states like Alabama and North Carolina have treated race in redistricting.”

Levitt – who’s filed amicus briefs in support of the plan challengers in North Carolina — added that while technically the high court’s ruling in Alabama applies only to the Section 5 claims asserted in that case, the justices were saying something much broader about the use of race.

“The Voting Rights Act is very sensitive to local political conditions,” he said. “It steadfastly refuses to assume that all electorates will behave the same – that all African-American or all Anglo voters will behave alike. Instead it demands proof.”

- See more at: http://www.ncpolicywatch.com/2015/08/27/redistricting-redux-round-three-opens-at-the-supreme-court/#sthash.pohRqUEC.dpuf