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Wednesday, August 23, 2017

Reprinted with permission from Alternet.

The Supreme Court’s ruling Monday that North Carolina Republicans had illegally segregated voters by race to create two U.S. House seats after 2010’s redistricting is a snapshot into the Republican dynamics of power-hungry partisanship and institutional racism. It also shows what the Court’s more liberal approach might have been if Senate Republicans hadn’t refused to consider President Obama’s nominee for the seat vacated by the death of Justice Antonin Scalia.

At issue was extreme partisan gerrymandering, when one party controls state government the year political boundaries are redrawn (usually after the once-a-decade Census) and ends up with outsized gains, or more seats in its legislature and U.S. House delegation than statewide divisions would suggest. The impact was seen in 2016 in states like Michigan, Wisconsin and Pennsylvania where Donald Trump beat Hillary Clinton by less than 1 percent, but these state legislatures and congressional delegations remained two-thirds Republican. Segregating voters, or gerrymandering, was the cause.

In North Carolina, race and party overlap, with non-whites overwhelmingly voting for Democrats and whites overwhelmingly voting Republican. Last year, a federal district court ruled the state GOP made two congressional districts overly Democratic in 2011 by illegally packing blacks into them while bleaching surrounding districts to ensure they would be won by Republicans. The state’s then-Republican governor appealed, and the question before the Court was, what was the top motive? Was it partisan greed, which the Court’s conservatives have said is a part of politics and should be left alone, or was it race, which cannot be used under federal law to deprive non-whites of political representation?

Those two silos, party or race, reflected the arguments that came before the Court last December when there were eight members—Justice Neil Gorsuch had not been seated. On Monday, the Court issued a 5-3 opinion, written by Elena Kagan, concluding it was race, which is illegal. The modern Court has never thrown out congressional maps citing race. The ruling was praised by Democrats like former Obama administration Attorney General Eric Holder and trashed by former George W. Bush administration Republicans like Hans von Spakovsky. The Court’s lone African-American justice, Clarence Thomas, broke with conservatives and agreed with the four liberals.

“A state may not use race as the predominant factor in drawing district lines unless it has a compelling reason. In this case, a three-judge District Court ruled that North Carolina officials violated that bar when they created two districts whose voting-age populations were majority black,” the majority opinion began. “Uncontested evidence in the record shows that the State’s mapmakers… purposely established a racial target: African Americans should make up no less than a majority of the voting age population.”

The Court noted how North Carolina Republicans boasted they were creating districts to empower blacks—a goal of the 1965 Voting Rights Act—when they packed black voters into fewer districts so the GOP could emerge with more House seats. The majority didn’t buy that, saying the state’s blacks had good representation and didn’t need the GOP’s help. They noted the party’s mapmakers were unapologetic about their goals—“to make the map as a whole ‘more favorable to Republican candidates’”—and politely called that line a fraud. Citing the VRA as an excuse to sort voters by race “is the kind of ‘exception’ that goes pretty far toward swallowing the rule,” the majority opinion said.

But Chief Justice John Roberts—who wrote the Court’s 2013 opinion gutting the VRA, saying the country has outgrown racial divisions and no longer need its toughest federal oversight provisions—and oft-moderate Anthony Kennedy joined conservative Samuel Alito’s dissent. They said the majority went hunting and “found a smoking gun” on race.

“The Court below seemed to think that it found a smoking gun,” their dissent read. “The majority focuses almost all its attention on a few references to race by those responsible for the drafting and adoption of the redistricting plan. But the majority reads too much into these references. First, what the plaintiffs had to prove was not simply that race played some role in the redistricting process, but that it was the legislature’s predominant consideration.”

This is where legal distinctions subvert real life. North Carolina’s Republicans have one of the most racially divisive recent histories of any state, with the possible exception of Texas, where lower federal courts have also ruled the GOP drew political lines to dilute Latino political power. Last week, the Supreme Court let stand an appeals court ruling that threw out five North Carolina voting rules that the judges said were designed with “surgical precision” to suppress black voters, such as requiring state ID cards to get a regular ballot that more whites had and cutting early voting. In that decision, Roberts wrote, “the [Court’s] justices were not endorsing the 4th Circuit’s reasoning.”

Like that comment from Roberts, Alito’s dissent also turns a blind eye to race. This is no accident; it’s how institutional racism endures, allowing discrimination to continue and painting those who challenge it as unhinged. What’s equally remarkable about Alito’s dissent is how he unapologetically describes the GOP coup that occurred after the 2010 Census, which turned purple North Carolina into a red state for this decade. He begins by describing the results of the state’s extreme partisan redistricting.

“In 2010, prior to the adoption of the current plan, Democrats won 7 of the 13 [House] districts, including District 8,” Alito wrote. “But by 2016, Republicans controlled 10 of the 13 districts, including District 8, and all the Republican candidates for House of Representatives won their races with at least 56% of the vote.”

That 56 percent figure is revealing. It’s a metric confirming the GOP identified and packed sufficient numbers of reliable Republican voters into districts to secure more seats. In contrast, in 2016 North Carolina’s Democratic delegation saw Rep. Alma Adams get 67 percent, Rep. David Price get 68 percent and Rep. G.K. Butterfield get 69 percent of the vote. This disparity shows how redistricting sorts voters. Alito’s dissent said this consequence was the political spoil of winning before redrawing lines for a decade. He added the Court has never thrown out districts for naked partisan greed.

“Gerrymandering dates back to the founding [of America], and while some might find it distasteful, our prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the state were conscious of that fact,” Alito wrote. “If around 90% of African-American voters cast their ballots for the Democratic candidate, as they have in recent elections, a plan that packs Democratic voters will look very much like a plan that packs African-Americans voters.”

The Supreme Court’s ruling, in which its majority drew a line against the illegal use of race instead of the legal excuse of partisan greed, shows how a more left-leaning Court might have behaved if Obama had succeeded in seating his final nominee, Merrick Garland. Instead it is an open question where the Court will go when it next visits gerrymandering.

Its next big redistricting case is from Wisconsin and will be heard in the term starting in October. That case doesn’t involve race; just a partisan power play. As Alito’s defense implies, the Court’s conservatives have no problem with that. The only possible big case involving racial discrimination would come from Texas, where a lower federal court in March said race was illegally used to draw political lines. Texas Republicans have yet to appeal that ruling in a case that has gone on for years.

In the meantime, the Court’s newest member, Neil Gorsuch, is expected to be a firm conservative vote on redistricting, whether the question is party or race. That means Monday’s ruling could be a temporary liberal blip on the screen while the big picture is heading toward the political right. But for now, more than a half-dozen years after Republicans in North Carolina brazenly grabbed more state and federal power, the prospect of that state emerging as politically purple is more tangible.

Steven Rosenfeld covers national political issues for AlterNet, including America’s democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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