North Carolina Redistricting Cases: the 1990s
The 1991 North Carolina General Assembly originally enacted a congressional plan with one minority district, the 1st, in the northeastern part of the State where demographics make a compact Black district easier to draw, especially if joined with the Black precincts of nearby Durham. That plan was disapproved by the U.S. Justice Department under the Voting Rights Act because of alleged lack of minority representation. (North Carolina's Black population amounts to 22 percent of the total population. One district is only 8 percent of 12 districts. Two of 12 is 16 percent.) The General Assembly, then controlled by Democrats, responded in early 1992 by enacting the famous 12th. Republican legislators had proposed several plans that contained two minority districts; in drawing the 12th, the Democratic leaders simply picked one of those plans and retooled it to be friendlier to Democrats.
In drawing the 12th in 1992, the General Assembly made use of the politically powerful Black community of Durham, removing it from the one minority district of the rejected 1991 plan. The 1st district in the 1992 plan was a predominantly Black district that, without Durham, was less compact. The State would later defend the two minority districts of 1992 as based on demographics other than race, with the 12th an urban Piedmont district and the 1st a rural eastern district.
North Carolina had been the center of redistricting litigation in the 1980s, with the challenge to its legislative districts in Gingles v.Edmisten, (later Thornburg v. Gingles) providing the occasion for the Supreme Court's test for when minority districts were required. In its turn, the 1990s redistricting drew several challenges. The 12th Congressional District was not the only target, but it was the most notable one and the one that triggered redistricting law's major innovation of the 1990s, the "Shaw Doctrine."
Pope v. Blue, 809 F. Supp. 392 (W.D. N.C. 1992), aff'd mem. 113 S. Ct. 30 (1992)
Several Republican plaintiffs challenged the 1992 congressional plan on the grounds that it lacked compactness and lacked respect for communities of interest. The case was dismissed for failing to state a claim on which relief could be granted. That judgment was affirmed by the U.S. Supreme Court in September 1992.
Shaw v. Barr, 808 F. Supp. 461 (W.D. N.C. 1992), rev'd sub nom. Shaw v. Reno, 509 U.S. 630 (1993)
A different set of plaintiffs challenged the 1992 congressional plan, and specifically the 12th District, on the ground that it failed to respect communities of interest. The plaintiff's attorney, Robinson O. Everett, was a Democrat, a Duke University Law Professor, and former Chief Justice of the U.S. Military Court of Appeals. (The State Republican Party later joined as a plaintiff-intervenor.) Mr. Everett alleged in the lawsuit, among other things, that Mr. Barr, the U.S. Attorney General, had misinterpreted the Voting Rights Act by, in effect, requiring racial quotas in redistricting as a standard for approval under Section 5. In April 1992, a three-judge federal panel in the Eastern District of North Carolina dismissed the lawsuit as failing to state a claim on which relief could be granted. The panel also ruled that it had no jurisdiction over a claim against the U.S. Attorney General. The plaintiffs appealed to the U.S. Supreme Court.
Shaw v. Reno, 509 U.S. 630 (1993)
On appeal as Shaw v. Reno, the legal theory on which the attack was based was endorsed by the Supreme Court. The Supreme Court did not actually rule that the plan was invalid. It only ruled that a racial gerrymander may, in some circumstances, violate the Equal Protection Clause. The case was remanded to the district court to determine whether the districts had been drawn on the basis of race and, if so, whether the racial gerrymander that resulted was "narrowly tailored to further a compelling governmental interest." 509 U.S. ____ (slip op. at 26).
The five-to-four majority opined that "reapportionment is one area in which appearances do matter." 509 U.S. 630, ____ (slip op. at 15). As Justice O'Connor said in her opinion for the Court:
A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group--regardless of their age, education, economic status, or the community in which they live--think alike, share the same political interests, and will prefer the same candidates at the polls . . . . By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.509 U.S. 630, ____ (slip op. at 15-16).
The Court said that a redistricting plan that is so bizarre on its face that it is unexplainable on grounds other than race demands the same strict scrutiny given to other state laws that classify citizens by race. 509 U.S. 630, ____ (slip op. at 12).
The Court did not say that race-based redistricting is always unconstitutional. The Court recognized that:
[R]edistricting differs from other kinds of state decisionmaking in that the legislature is always aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination. . . . [W]hen members of a racial group live together in one community, a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions.
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But, when a State concentrates a dispersed minority population in a single district by disregarding "traditional districting principles such as compactness, contiguity, and respect for political subdivisions" the State is drawing a racial gerrymander that is subject to strict scrutiny.509 U.S. 630, ____ (slip op. at 14-15).
To survive strict scrutiny, a racial classification must be narrowly tailored to serve a compelling governmental interest. The Court acknowledged that eradicating the effects of past racial discrimination was a compelling governmental interest. But the Court warned that the State must have "a strong basis in evidence for concluding that remedial action is necessary," 509 U.S. 630, ____ (slip op. at 24), and that "race-based districting, as a response to racially polarized voting, is constitutionally permissible only when the State employs sound districting principles, and only when the affected racial group's residential patterns afford the opportunity of creating districts in which they will be in the majority." 509 U.S. 630, ____ (slip op. at 25) (internal citations and quotations omitted). The Court anticipated that the State might assert on remand that complying with § 5 of the Voting Rights Act was a compelling governmental interest that justified the creation of District 12. But the Court warned that "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." 509 U.S. 630, ____ (slip op. at 23). The Court also noted that the State had asserted that the race-based district was necessary to comply with § 2 of the Voting Rights Act, but left the arguments on that question open for consideration on remand. 509 U.S. 630, ____ (slip op. at 23-24).
In dissent, Justice White criticized the majority for focusing on the district's shape, rather than on the political impact it would have. He chastised them for failing to adhere to the requirements he had enunciated in Davis v. Bandemer, 478 U.S. 109 (1986), for striking down a partisan political gerrymander under the Equal Protection Clause: that the plan have both a discriminatory purpose and a discriminatory effect on an identifiable group of voters. Since the plaintiffs had not alleged that the plan discriminated against either Blacks or Whites, Justice White would have affirmed the decision of the district court dismissing the claim. 509 U.S. 630, ____ (slip op. at 6).
Justice Stevens pointed out that the Court already knew that the North Carolina Legislature had drawn the I-85 district to include a majority of African American residents. The Court didn't need to examine the shape of the district to find that out. But, since the purpose of drawing the district was to enhance the minority's electoral strength, rather than to diminish it, he saw no equal protection violation. Indeed, he found it "perverse" that the Court was using the Equal Protection Clause to deny African Americans, the people for whom the Equal Protection Clause was written, an improvement in their electoral representation. 509 U.S. 630, ____ (slip op. at 4).
Shaw v. Hunt, 861 F. Supp. 408 (E.D. N.C. 1994), rev'd 116 S. Ct. 1894 (1996)
On remand, the federal district court found that the Legislature had intentionally drawn the plan to create two districts where blacks were an effective voting majority. 861 F. Supp. at 473-74. The Court then applied strict scrutiny to the plan and found that it was narrowly tailored to achieve a compelling state interest. Eradicating the effects of past racial discrimination was not a compelling state interest in this case, because that was not actually the reason the State created District 12. But complying with § 5 and § 2 of the Voting Rights Act were compelling state interests, and the district court found the plan was necessary to comply with both of those sections.
Shaw v. Hunt, 116 S. Ct. 1894 (1996)
On the plan's third trip to the Supreme Court, the Supreme Court reversed the district court for a second time. In an opinion by Chief Justice Rehnquist, the Supreme Court again assumed without deciding that complying with § 5 and § 2 was a compelling state interest, but found that the plan was not narrowly tailored to achieve that interest.
North Carolina had not previously had any Black-majority districts. The first plan drawn by the State had included one Black-majority district. A second Black-majority district was not necessary in order to avoid retrogression under § 5. 116 S. Ct. at 1904.
To make out a violation of § 2, a plaintiff must show that a minority population is "sufficiently large and geographically compact to constitute a majority in a single-member district." The Court noted that District 12 had been called "the least geographically compact district in the Nation." 116 S. Ct. at 1901. There may have been a place in North Carolina where a geographically compact minority population existed, but the shape of District 12 showed that District 12 was not that place. Since District 12 did not encompass any "geographically compact" minority population, there was no legal wrong for which it could be said to provide the remedy. 116 S. Ct. 1906.
The Supreme Court's decision striking down the North Carolina plan was announced June 13, 1996. But the federal district court took no action to draw new districts for the 1996 election. Rather, the court referred the plan to the North Carolina Legislature, with instructions that it draw a new plan for use in the 1998 election. The Legislature met that deadline.
Cromartie v. Hunt, 34 F. Supp. 2d 1029 (E.D. N.C. 1998)
Shortly after the 1996 Supreme Court decision in Shaw, Robinson Everett filed a complaint against the 1st Congressional District on behalf of Martin Cromartie.
After the enactment of the 1997 plan, Mr. Everett amended the Cromartie complaint, challenging both new 1st and 12th districts in the 1997 plan. The amended complaint alleged that the new 1st and 12th congressional districts are unjustified racial gerrymanders. The new 12th, he argued, was "fruit of the poisonous tree"--the poisonous tree being the old 12th and the poison being its racially gerrymandered origins. The State argued in defense that strict scrutiny under Shaw should not apply to the 12th of 1997 because it was not a majority-minority district: Its total population was actually 51.59 percent White.
In April 1998, a three-judge federal panel in Eastern District of North Carolina granted Mr. Everett summary judgment in the case of the 12th District and a permanent injunction halting the 1998 congressional districts because of that district. (Candidate filing had ended two months before and the primary was a month ahead.) Although the opinion did not mention "fruit of the poisonous tree," it did say that the 12th of 1997 was noncompact and showed evidence that race was the predominant factor in its design. The Court noted that as the district wound through certain counties and towns, the deciding factor in which precincts it picked up along the way seemed to be race rather than party. The State's argument that the 12th was not quite a majority-minority district went unmentioned by the Court. The Court noted that the 1st district was not nearly so irregular as the 12th, and therefore did not justify summary judgment or injunctive relief.
The Court gave the Legislature a month and a half to revise the 1997 plan for a special congressional primary in September. The Legislature met the deadline, further pruning and fattening the 12th.
(It was noted by some observers that the three-judge panel in the Shaw case consisted of two judges appointed by Democratic Presidents and one by a Republican President. In Shaw, that panel ruled against Mr. Everett's clients three times to uphold a plan or the use of a plan. Each time the Republican appointee dissented. In the Cromartie case, however, the panel consisted of two Republican appointees and one Democratic appointee. That panel ruled 2-1 for Mr. Everett's clients, with the Democratic appointee dissenting.)
Daly v. Leake, No. ___________ (E.D. N.C., 2nd amended complaint filed Oct. 8, 1997)
In July 1996, Jack Daly, a law student and Republican activist, and other plaintiffs filed a complaint against several congressional and legislative districts. They alleged racial gerrymanders under the Shaw doctrine. In October 1997, Daly amended his complaint to add plaintiffs with standing to challenge six congressional districts, seven state Senate districts, and eight state House districts. Some of the challenged legislative districts were majority-minority districts whose minority percentages the State had increased in 1992 because first-round Section 5 preclearance had been denied. Others were overwhelmingly White districts surrounding those minority districts. A few others were majority-White districts not adjacent to minority districts. In those, Daly alleged that race was used as a proxy for party to create a partisan gerrymander.
In April 1998, the same three-judge panel that had a week earlier granted injunctive relief in Cromartie denied a preliminary injunction in Daly. The Court noted that Daly had waited seven months after filing his complaint before serving it on the defendants and had waited another 13 months before filing a motion for a preliminary injunction. Moreover, the Court noted he had presented no evidence other than a memo from himself as an expert witness, without demonstrating why he was qualified to be one. Such a record, the Court said, did not entitle Daly to emergency relief.
Hunt v. Cromartie, 526 U.S. 541 (1999)
On the congressional plan's fourth trip to the Supreme Court (the third time it had been fully argued), the Supreme Court again reversed the district court. Justice Thomas spoke for all members of the Court in saying that it was error for the district court to have granted summary judgment for the plaintiffs that the plan was a racial gerrymander when defendants had submitted evidence that the motivation of the North Carolina General Assembly in drawing the plan was partisan rather than racial: to protect incumbents and to preserve the existing partisan balance in the State's congressional delegation. Justice Stevens, on behalf of four members of the Court, concurred in the judgment and further noted that a "bizarre configuration is the traditional hallmark of a political gerrymander," and that the most loyal Democrats living near the borders of District 12 happened to be black Democrats.
Cromartie v. Hunt, No. 4:96-CV-104-BO(3) (E.D. N.C. Mar. 7, 2000)
On remand, the district court held a three-day trial, after which the court concluded that both the 12th district and the 1st district boundaries had been drawn along racial lines for a predominantly racial motive. With regard to the 1st district, however, the court found that it was narrowly tailored to achieve the State's compelling governmental interest in complying with § 2 of the Voting Rights Act and thus survived strict scrutiny. It enjoined further use of the 1997 plan's 12th district, while permitting the continued use of the 1st district.
Hunt v. Cromartie, 532 U.S. 234 (2001) No. 99-1864, and Smallwood v. Cromartie, No. 99-1865
The U.S. Supreme Court stayed the March 7, 2000, order of the district court, thus allowing the 1997 plan to be used for the 2000 election. On June 26, 2000, the Supreme Court noted probable jurisdiction of the appeals. On April 18, 2001, it reversed. Writing for the five-justice majority, Justice Breyer said that “The evidence . . . does not show that racial considerations predominated in the drawing of District 12's boundaries. That is because race in this case correlates closely with political behavior.” Slip op. at 22. Justice Thomas, writing for the four dissenters, said the lower court ruling that the district was unlawfully based on race was not clearly erroneous and should not be overturned.
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Update: July 8, 2003 (psw)