The Supreme Court handed down a big decision today, but to understand it we gotta go back to the 90's.
Back in the day, racial re-districting (redrawing districts based on race) was actually something Democrats/liberals supported. The Voting Rights Act, which was passed in 1965, barred states from diluting minority votes and it required the creation of majority-minority districts in states with a history of racial discrimination. It was a way of ensuring that minority votes had power to elect someone to represent them in Congress.
Let’s take a look at these two districts in North Carolina: Districts 1 and 12.
In 1990 North Carolina was ruled by the Democrats, who gerrymandered these 2 districts into weird shapes that were drawn along racial lines. Republican voters sued, claiming that this was a violation of the 14th Amendment Equal Protections Clause:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In response, North Carolina’s Dems were like yeah, we did draw these districts along racial lines, but that was because we wanted to comply with the Voting Rights Act which actually requires the creation of majority-minority districts.
That suit went all the way up to the Supreme Court which, in 1996, decided that the Republican voters were right here: racial gerrymandering in this case violated the Equal Protections Clause.
Dems were pissed. They saw this as an attempt by Republicans to prevent black voters from being able to elect their own representatives.
But then in 2001 the Supreme Court decided that actually, sometimes racial gerrymandering is ok, as long as race isn’t the main factor in the gerrymandering. So if a state redraws a district that happens to contain an overwhelming number of black voters and Democrats, as long as they can prove that the main reason they drew it that was was because of the Democrats, it’s all good.
Progressives were pumped about this because to them it meant more voting power for minorities.
What they didn’t see was how racial gerrymandering could be used against them…
There are now many instances where Republican-dominated states have redrawn districts based on race in order to protect their own seats and gain huge majorities. Again, as long as Republicans could show the main reason they redrew these districts was because of partisanship and not race, it’s legal.
That is until Monday May 22, 2017.
Cooper v. Harris
Remember those two North Carolina districts (1 & 12) I mentioned earlier? Well they came up again in another case that went up to the Supreme Court called Cooper v. Harris.
In the Supreme Court decision on Cooper v. Harris, the Court decided that:
- Race was the predominant factor in redrawing North Carolina Districts 1 & 12, and thus is unconstitutional.
- In places where race and party overlap significantly, they can’t be separated when gerrymandering.
#2 means that it will now be much more difficult for a state to redraw districts that happen to contain mostly Democrats and blacks, then claim it was really discriminating against Democrats, not blacks.
As Rick Hasen (law prof & prolific legal blogger) puts it:
Holy cow this is a big deal. It means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting.
One of the most surprising things was that Justice Thomas, one of the conservative justices, voted with the liberals here 5–3. He‘s been against racial gerrymandering for a while though, both when it was designed to empower black Democrats as well as when it was used to empower white Republicans. The dude is consistent, which in my humble opinion is very admirable.
Further reading/watching if you’re into this stuff:
If you need a refresher on how Gerrymandering works:
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