Those fighting for a more inclusive and representative democracy would do well to look past the headlines about this term’s election law cases.  A sobering trend seems to be unfolding: a good result splashes across the news—monster voter suppression law dies!—only to be replaced with a slow realization that the retreat may be less of a rout and more of a retrenchment.

So it may be with yesterday’s decision in Cooper v. Harris.  The Twitter-sized takeaway is a mixed bag: Good short-term result and good clarification of the law on “race-as-a-proxy-for-politics”; bad dicta on partisan advantage and bad signaling for future partisan gerrymandering cases based on Kennedy’s place among the dissenters.

The cause for caution is that this trade-off (more clarity on proxies, less clarity on partisanship) provides helpful tools for fighting yesterday’s proxy battles but may not help bring the larger partisan war to a close.  The racially gerrymandered map at issue in yesterday’s case, for example, was replaced by the North Carolina legislature with a partisan gerrymandered map over a year ago.  Unless the Court takes a strong stand on partisan gerrymandering next term, meaningful racial and political representation will remain at risk.

On Proxies

One of the most significant parts of the majority’s decision is its crystal-clear statements that race cannot be used as a “proxy” for party to advance other interests, such as partisan or incumbency goals.  Slip Op. 2 n.1 & 20 n.7.  The sorting claim turns on “the basis of the sort, not the goal of the sorter.”  Rick Pildes and Justin Levitt point out that this is hardly a new concept, but—as with Bethune—the clarity of the Court’s statement matters for reasons more practical than academic.  Rick Hasen is right to call Cooper a “big deal” on this front, if not simply because district courts have continued to struggle with the proxy issue long after the debate was supposedly settled.

That said, Cooper does not treat “race and party as proxies for one another”—at least not in the way Hasen claims.  It may be helpful here to distinguish four categories:

• If a district is drawn on the basis of race to achieve a racial objective (whether proper (VRA) or improper (dilution)), it is a racial gerrymander. The constitutionality of that racial gerrymander turns on the nature of the interest (whether the interest was in preventing dilution or perpetuating dilution) and the tailoring to that interest (whether the race-based districting was reasonably necessary to prevent dilution).
• If a district is drawn on the basis of race to achieve a political objective (whether proper or improper), it is still a racial gerrymander. Vera and Cooper reflect this “race as proxy for politics” rule.
• If a district is drawn on the basis of politics to achieve a political objective (whether proper or improper), it is a political gerrymander. Under Cromartie, this remains true even if mapmakers are conscious that such political gerrymandering will have a racial impact.  In such cases—where there is knowledge of racial impact—is where Hasen seems to be looking for courts to treat “politics as a proxy for race” (“party as race”).  But Cooper does no such thing.  Rather, the Court seems to reaffirm the Cromartie approach in how it treats the State’s argument about packing based on political data rather than racial data.  See Slip Op. 18, 25.
• There is a fourth category, however, where the Court hints that perhaps “party as race” might apply: If a district is drawn on the basis of politics to achieve a racial objective, it raises a strange (and hopefully rare) question: is the gerrymander racial or political? Slip Op. 31 n.15.  The initial instinct may be to treat this as a racial gerrymander based on the racial goal, but that risks conflating the Court’s dilution jurisprudence with its sorting jurisprudence.  Indeed, the “race as party” rule in #2 above makes little sense if the goal dictates the nature of the gerrymander in #4.  Nor would it help to say the “real” basis in such cases is race—cf. Slip Op. 27 n.14—because, again, the objective would be transforming the basis in a way irreconcilable with #2.  For doctrinal consistency, it seems more appropriate to treat the district as a political gerrymander that is unconstitutional based on the illegitimacy of its racial objective, just as a racial gerrymander cannot be sustained by a non-compelling political objective.  After all, Cromartie I and Cooper only permit “constitutional political gerrymandering.”

Despite plowing little new ground, however, the clarity of the Court’s “race as party” statement will go a long way in redistricting litigation throughout the South.  In Virginia, plaintiffs in the Bethune remand are finally challenging the “partisan/incumbency advantage defense” to racial gerrymandering thanks to OneVirginia2021 raising the issue (in a brief citing my article).  In Georgia, the Lawyers’ Committee has placed the proxy rule at the heart of its complaint and raised both racial and political claims.  And, in Texas—where the State’s partisan justifications are central to its defense—the court has asked if the legislature will “voluntarily undertake redistricting” in light of the Cooper decision.[1]

Cooper also brought two other benefits in tow.  The majority disposed of the “alternative map” requirement in conjoined polarization cases where there is already sufficient evidence of race-based sorting, and the majority helped reaffirm the distinction between an interest in genuine compliance with the VRA’s underlying standards and superficial compliance with the VRA to forestall liability under Section 2.  See, e.g., Slip Op. 3.  As I’ve noted, this distinction matters in the ongoing battle to convince the Court that compliance with the VRA is a sufficient interest to justify race-based redistricting.  As in past cases, the Court in Cooper continued to merely “assume” that the VRA is a compelling interest (with the exception of J. Thomas, who continues to think Section 2 does not apply to redistricting).

This distinction also matters because, as Nick Stephanopoulos points out, there are many majority-minority districts that could be transformed into crossover districts without posing a threat of racial vote dilution.  Assuming minority voters continue to constitute a sufficient percentage in these crossover districts to maintain descriptive representation, both racial and political representation could be improved throughout the country.  Both Bethune and Cooper provide tools to help litigants challenge unlawful packing and more closely tailor maps to the VRA’s requirements.

Unfortunately, this is where the glowing headlines stop.  Just as the celebrations over the Supreme Court’s non-decision regarding NC’s “monster suppression law” were short-lived (based on Chief Justice Roberts’ apparent invitation for the legislature to try again, and the legislature’s apparent interest in doing so), the immediate impact of Cooper on North Carolina districts is… nothing.  Because the legislature replaced the racial gerrymander with a partisan gerrymander back in February 2016 after the district court found the former defective, the latter remains in place today.  If this occurs throughout the South, even a sweep of successful racial sorting claims may do little to improve overall representation.[2]

Even worse, the sorting claim’s growing vitality continues to loom over the VRA.  First, it seems naïve to think majority-minority districts will be replaced throughout the South with crossover districts that protect racial representation while improving political representation without prolonged and widespread litigation.  Each case will pose a trap to attorneys unaware of redistricting law’s nuances, with the collateral consequences for missteps likely endured by the VRA.  The New New Misreading of the Voting Right Act may well involve legislatures claiming that they have no obligation to create crossover districts and no liability for slicing through them “consciously but not intentionally” pursuant to their efforts to effectuate partisan gerrymanders using political data.  Like North Carolina’s misreading of Strickland in Cooper, such an approach would be a misreading of Strickland and Cooper.

Second, the Court is already playing fast and loose with its views on predominance.  In Bethune, the Court split 6-2 on its interpretation of predominance, with Thomas and Alito believing that the intentional creation of a majority-minority district alone necessarily constituted predominance.  As I noted back in March, this 6-2 split was intriguing because Roberts had previously subscribed to the Alito/Thomas view of predominance in LULAC.  My view at the time was that “[b]y joining the majority in Bethune, [Roberts] may be engaging in a form of directional incrementalism, building ‘consensus’ around otherwise controversial concepts and attempting to slowly erase the distinctions between these two approaches.”  This posed the risk that “Kennedy’s view of predominance might slowly evolve towards Alito & Thomas’ view.”

Such much for “slowly.” Cooper reflects a 4-4 split on predominance, with Thomas (Op. 1) and Alito, Kennedy, and Roberts (Op. 3 n.1) subscribing to the view that the intentional creation of a majority-minority district alone triggers strict scrutiny.

Nonetheless, the holding in Bethune should control.  Cooper was evenly divided on the issue.  And, more importantly, the predominance holding was central to Bethune and only received cursory treatment in Cooper.  Thus, while legislators should exercise caution in employing demographic targets, it remains the case that the use of a racial target (such as 50%) should not automatically trigger strict scrutiny.  Instead, the target must have “a direct and significant impact” on the district’s configuration.  Cooper, Slip Op. 11 (citing Alabama).  Of course, Bethune held that this impact need not manifest in actual conflict with traditional redistricting factors.  See Cooper, Slip Op. 12 n.3.  If “race for its own sake” provided the “essential basis” upon which the lines were drawn, then the lines’ compliance with traditional criteria cannot save them.  Bethune, Slip Op. 9, 10.  But when targets are grounded in localized voting conditions and an inquiry into indicia reflecting an actual community of interest (rather than simply being grounded in a “skin-deep” use of race), then such a target may not trigger strict scrutiny at all.  Cf. Cooper, Slip Op. 16 n.5; see also Miller, 515 U.S. 900, 920 (1995).

In the redistricting canon, Alabama held that mechanical uses of race do not survive strict scrutiny (i.e., are not “reasonably necessary” under the VRA), and Bethune held that mechanical uses of race trigger strict scrutiny (i.e., make race “predominant” under the Equal Protection Clause), but neither held that the intentional use of race is impermissible altogether.  Cooper’s muddling of the law on polarization and predominance is unwelcome and unhelpful.  But it was not the decision’s only troubling turn…

On Partisanship

As many were quick to point out, Kennedy’s alignment with the dissent was particularly concerning given Alito’s forgiving dicta regarding partisan advantage and Kennedy’s swing status in next year’s (likely) blockbuster political gerrymandering cases.  Hasen opines that Kagan likely lost Kennedy when she eliminated the alternative maps requirement, but this holdup may reflect a deeper principle.  Kennedy has consistently left the door open to partisan gerrymandering claims, but he also has consistently expressed concern about the institutional, separation of powers, and federalism concerns that would be raised by further federal court involvement in the redistricting realm.  With generous citations to Miller, Alito brings these concerns into sharp relief:

“[I]f a court mistakes a political gerrymander for a racial gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State’s elected representatives. This does violence to both the proper role of the Judiciary and the powers reserved to the States under the Constitution. . . [and] the federal courts will be transformed into weapons of political warfare.”  Alito Op. 8

While we can only speculate why Justice Kennedy declined to join the majority, divining his motivation will be critical as litigants frame their briefs to the Court in the months ahead.  (Besides, to quote Justin Levitt, “tea-leaf-readers gonna tea-leaf-read.”)

Perhaps just as surprising (and disheartening) was Justice Kagan’s offhand treatment of the partisan advantage issue in the majority opinion.  As Kagan noted in her decision, “we pay our precedents no respect when we extend them far beyond the circumstances for which they were designed.”  Unfortunately, this is precisely what her dicta risks doing.  As I’ve written, the Supreme Court’s case law reflects a distinction between “partisan advantage” and “political fairness/partisan balance” or other legitimate “political” interests.  (Just as its precedent reflects a distinction between “incumbency advantage” and “incumbency pairing prevention.”)  Despite Kagan’s casual citation to Miller for the notion that “partisan advantage” and “what have you” can offset a claim of racial gerrymandering, Slip Op. 2, Miller, Vera, and Alabama do not so hold.  Indeed, if partisan advantage were a plainly legitimate interest, it would make little sense for the Court to have reserved such a similar question in Harris just last year.

In truth, the plaintiffs never lodged an objection to the state’s “partisan-advantage” defense and the question of its legitimacy was simply never raised.  As Justice Alito noted in his dissent, “[p]artisan gerrymandering . . . is not the issue here.”  Dissent Op. 3.   In Cromartie, the state’s interest was in achieving “racial and partisan balance.”  Dissent Op. 32.  In that case, North Carolina sought to create a 6-6 Republican-Democrat balance in the congressional delegation.  This was in line with the underlying voting power and preferences of the electorate.  In Cooper, on the other hand, the state’s purported interest was in “maximiz[ing] Republican opportunities,” Dissent Op. 17, and controlling 10 out of 13 congressional districts despite the relatively balanced voting power and preferences of North Carolina’s electorate, Dissent Op. 16.

Conflating these would extend the holding in Cromartie beyond its facts and open up a number of additional redistricting law incoherencies:  If a finding of political basis/predominance can foreclose a finding of racial basis/predominance, then how is it “unmanageable” or “impossible” for Courts to identify political gerrymanders?  If partisan/incumbency advantage can constitute an illegitimate interest in the OPOV context, how can it become a legitimate interest in the sorting context?  And, most troublingly, if “partisan advantage” can constitute a legitimate state interest, then how does the very concept of rational-basis review not begin to unravel?

As discussed in a prior post, the Court eventually must grapple with the foundational principles of its constitutional enterprise—which demand that legislation have a rational basis and that parties seek to attain political dominance on the merits—and the legal risk of accepting “partisan advantage” as a state interest—which would permit legislation with no rational basis and allow political dominance as an end in itself.

To be clear, there is nothing wrong with “partisan intent” in general.  The desire to defeat your political opponent is an animating and natural feature of democracy itself.  Using hardball, partisan tactics and strategy to appeal to voters and win their political support is an essential part of politics.  And there is no point at which such general partisanship goes “too far” or becomes “excessive” as far as the Constitution is concerned.  That is for the voters to decide.

In the voter access and redistricting contexts, however, partisans are not attempting to appeal to voters, they are attempting to silence voters.  This short-circuits the very democratic processes that make partisanship productive and undermines basic constitutional notions that legislation—at the very minimum—be rationally related to a legitimate state interest.

The Court already applies heightened scrutiny in “precedents involving discriminatory restructuring of governmental decisionmaking,” see Romer v. Evans, based on this very concern:

“The presumption of constitutionality and the approval given ‘rational’ classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality.”  See Kramer v. Union Free Sch. Dist. No. 15.

This particular strain of “invidious partisan intent” is exceedingly narrow and specific: it is the intent to burden citizens’ rights because of their political preferences. And it is just as necessary to hold that this specific partisan intent is illegitimate (regardless of degree) as it is to hold that a general partisan intent is legitimate (regardless of degree).

In short, there is an obvious difference between the intent to win the political preferences of voters (which is appropriate and permissible even to an extreme degree) and the intent to burden voters because of their political preferences (which is inappropriate and impermissible regardless of degree).  The former represents a critical element at the heart of our representative democracy and at the root of partisan competition on the merits.  The latter represents a complete inversion of democracy, with partisans seeking to wall themselves off from the very concept of representativeness and to avoid the need to compete on the merits.

By focusing on this very narrow and particular kind of invidious intent, the Court could build a universalistic foundation not only for redistricting law but for voting rights law in general.  Citizens understand—with no need for specific case law or constitutional precedent—that there is something fundamentally wrong with sorting citizens into districts or burdening citizens’ right to vote based on their political preferences for the purpose of partisan advantage.

Luckily, these arguments are finally being raised in the district courts, from Virginia and North Carolina to Texas and Georgia and Wisconsin.  It is true, as Justice Alito notes, that the courts must “exercise extraordinary caution” “where the State has articulated a legitimate political explanation for its districting decision.”  Dissent Op. 34.  “Encouraging competition” may be a legitimate political explanation for sorting voters based on politics.  “Partisan balance” or “political fairness” may be legitimate political explanations for sorting voters based on politics.  But “partisan advantage” is not.  It should justify neither political dilution nor political classification.  And when this question is finally laid squarely before the Court—as it looks sure to next term in Whitford, Harris, or another case—the Court must finally say so.  If it does not, the victory in yesterday’s proxy battle will do little to help bring an end to the larger partisan war.

 

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[1] It is worth mentioning that I believe Judge Smith reads too deeply into my post about the Bethune-Hill decision when he states in his most recent dissenting opinion that I “agree[] with [him] that ‘[i]f anything, Bethune[-Hill] took a step backwards’ for redistricting plaintiffs.”  See Slip Op. 164 n.27.  Even if Bethune-Hill (and now Cooper) contain unhelpful dicta regarding the legitimacy of incumbency/partisan advantage, that would not undermine what the plaintiffs in Texas have alleged: that the state pursued political objectives on the basis of race.

[2] Racial sorting claims may provide greater impact where a state’s governorship is held by the opposing party and the majority party in the legislature does not have sufficient power to override a veto (where applicable under state law).