We have no doubt that an alternative districting plan, of the kind North Carolina describes, can serve as key evidence in a race-versus-politics dispute. One, often highly persuasive way to disprove a State’s contention that politics drove a district’s lines is to show that the legislature had the capacity to accomplish all its partisan goals without moving so many members of a minority group into the district. If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this. Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible, rather than a prohibited, ground.
In sum, the North Carolina legislature didn’t do a very good job of covering its race-minded tracks. The district court saw through their arguments and the Supreme Court upheld its judgment.
As we have noted, some recent losses for Republicans have concerned redistricting (as in Texas) and others have included voter-ID requirements. Several factors are at play here. First, with more GOP governors and legislatures, there were more efforts to shape districts and construct voting rules that favored Republicans. Second, in many instances state legislatures were greedy — throwing multiple provisions into a bill, all of which had a common purpose, namely diminishing minority voting power. Clearly, some legislatures took the Supreme Court’s decision striking down pre-clearance requirements as a license to go after minority voting. Third, litigants have been more successful in their research, turning up evidence of voter suppression. They’ve learned from early losses, for example, in challenging voter-ID laws. And, finally, we see how precedent works. A couple “good” decisions for one side encourage more litigation and sway courts, even those in other jurisdictions.
The Brennan Center for Justice, a civil rights litigation group that is seeking to strike down voting restrictions and filed an amicus brief in Cooper v. Harris, crowed:
In affirming the trial court’s decision, the Court rebuffed North Carolina’s attempt to erect formalistic doctrinal barriers to racial gerrymandering claims, like its effort to have the question of intent turn on things like the shape of districts or whether towns or precincts were split.Michael Li, Senior Counsel with the Brennan Center’s Democracy Program said, “Today’s ruling is a strong warning that states can’t cloak impermissible intent behind narrow talismanic tests about shapes or ‘traditional districting criteria.’ That’s an especially important lesson in an age where computers make it easier than ever to draw nice looking districts that nonetheless are hugely discriminatory.”
Indeed, the ruling will spur more challenges and bolster the ACLU’s efforts to push back against the president’s election commission, which voting rights activists see as a thinly disguised voter suppression effort. (“The American Civil Liberties Union sent coordinated Freedom of Information Act requests to officials in Kansas, Indiana, New Hampshire, Maine and the U.S. Election Assistance Commission seeking information related to the Trump administration’s new ‘Presidential Commission on Election Integrity,” it said in a news release.) It would be ironic if under President Trump and a “conservative court,” the same court that struck down a section of the VRA, we saw a blossoming of anti-voting-restriction litigation.
All of this, of course, has ramifications for 2018. To the extent the GOP figured it had found a way to reduce minority participation and thereby boost GOP candidates, striking down these rules should encourage minority turnout and bolster minority communities’ voting power, which Republicans apparently concede is bad for their candidates. Moreover, seeing the degree to which Republicans tried (unsuccessfully) to diminish their voting power may provide clear evidence for minority voters that the GOP is hostile to their political participation. The portrait of widespread GOP gambits to depress their political strength may give new incentive for minority voters to register and vote Democratic. That would be some powerful political karma.