SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1262
_________________
ROY COOPER, GOVERNOR OF NORTH CAROLINA,
et al., APPELLANTS
v. DAVID HARRIS, et al.
on appeal from the united states district
court for the middle district of north carolina
[May 22, 2017]
Justice Alito, with whom The Chief Justice and
Justice Kennedy join, concurring in the judgment in part and
dissenting in part.
A precedent of this Court should not be treated
like a disposable household item—say, a paper plate or napkin—to be
used once and then tossed in the trash. But that is what the Court
does today in its decision regarding North Carolina’s 12th
Congressional District: The Court junks a rule adopted in a prior,
remarkably similar challenge to this very same congressional
district.
In
Easley v.
Cromartie, 532
U. S. 234 (2001) (
Cromartie II ), the Court
considered the constitutionality of the version of District 12 that
was adopted in 1997.
Id., at 238. That district had the same
basic shape as the district now before us, and the challengers
argued that the legislature’s predominant reason for adopting this
configuration was race.
Ibid. The State responded that its
motive was not race but politics.
Id., at 241. Its
objective, the State insisted, was to create a district in which
the Democratic candidate would win. See
ibid.; Brief for
State Appellants in
Easley v.
Cromartie, O. T.
2000, Nos. 99–1864, 99–1865
, p. 25. Rejecting that
explanation, a three-judge court found that the legislature’s
predominant motive was racial, specifically to pack
African-Americans into District 12. See
Cromartie v.
Hunt, 133 F. Supp. 2d 407, 420 (EDNC 2000). But this Court
held that this finding of fact was clearly erroneous.
Cromartie
II, 532 U. S., at 256.
A critical factor in our analysis was the
failure of those challenging the district to come forward with an
alternative redistricting map that served the legislature’s
political objective as well as the challenged version without
producing the same racial effects. Noting that race and party
affiliation in North Carolina were “highly corre-lated,”
id., at 243, we laid down this rule:
“In a case such as this one
. . . , the party attacking the legislatively drawn
boundaries must show at the least that the legislature could have
achieved its legitimate political objectives in alternative ways
that are comparably consistent with traditional districting
principles. That party must also show that those districting
alternatives would have brought about significantly greater racial
balance. Appellees failed to make any such showing here.”
Id., at 258.
Now, District 12 is back before us. After the
2010 census, the North Carolina Legislature, with the Republicans
in the majority, drew the present version of District 12. The
challengers contend that this version violates equal protection
because the predominant motive of the legislature was racial: to
pack the district with African-American voters. The legislature
responds that its objective was political: to pack the district
with Democrats and thus to increase the chances of Republican
candidates in neighboring districts.
You might think that the
Cromartie II
rule would be equally applicable in this case, which does not
differ in any relevant particular, but the majority executes a
stunning about-face. Now, the challengers’ failure to produce an
alternative map that meets the
Cromartie II test is
inconsequential. It simply “does not matter.”
Ante, at
30.
This is not the treatment of precedent that
state legislatures have the right to expect from this Court. The
failure to produce an alternative map doomed the challengers in
Cromartie II, and the same should be true now. Partisan
gerrymandering is always unsavory, but that is not the issue here.
The issue is whether District 12 was drawn predominantly because of
race. The record shows that it was not.[
1]
I
Under the Constitution, state legislatures
have “the initial power to draw districts for federal elections.”
Vieth v.
Jubelirer, 541 U. S. 267, 275 (2004)
(plurality opinion).[
2] This
power, of course, must be exercised in conformity with the
Fourteenth Amendment’s Equal Protection Clause. And because the
Equal Protection Clause’s “central mandate is racial neutrality in
governmental decisionmaking,”
Miller v.
Johnson, 515
U. S. 900, 904 (1995) , “effort[s] to separate voters into
different districts on the basis of race” must satisfy the rigors
of strict scrutiny.
Shaw v.
Reno, 509 U. S. 630,
649, 653 (1993) (
Shaw I ).
We have stressed, however, that courts are
obligated to “exercise extraordinary caution in adjudicating claims
that a State has drawn district lines on the basis of race.”
Miller, 515 U. S., at 916. “Federal-court review of
districting legislation represents a serious intrusion on the most
vital of local functions,” and “the good faith of a state
legislature must be presumed.”
Id., at 915. A legislature
will “almost always be aware of racial demographics” during
redistricting, but evidence of such awareness does not show that
the legislature violated equal protection.
Id., at 916.
Instead, the Court has held, “[r]ace must not simply have been
a motivation for the drawing of a majority-minority
district, but the
predominant factor motivating the
legislature’s districting decision.”
Cromartie II, 532
U. S., at 241 (citation and internal quotation marks omitted;
emphasis in original).
This evidentiary burden “is a demanding one.”
Ibid. (internal quotation marks omitted). Thus, although
“[t]he legislature’s motivation is . . . a factual
question,”
Hunt v.
Cromartie, 526 U. S. 541, 549
(1999) (
Cromartie I ), an appellate court conducting
clear-error review must always keep in mind the heavy evidentiary
obligation borne by those challenging a districting plan. See
Cromartie II,
supra, at 241, 257. Recognizing “the
intrusive potential of judicial intervention into the legislative
realm,”
Miller,
supra, at 916, we have warned that
courts must be very cautious about imputing a racial motive to a
State’s redistricting plan.
II
That caution “is especially appropriate
. . . where the State has articulated a legitimate
political explanation for its districting decision, and the voting
population is one in which race and political affiliation are
highly correlated.”
Cromartie II, 532 U. S., at 242. We
have repeatedly acknowledged the problem of distinguishing between
racial and political motivations in the redistricting context. See
id., at 242, 257–258;
Cromartie I,
supra, at
551–552;
Bush v.
Vera, 517 U. S. 952 –968 (1996)
(plurality opinion).
The problem arises from the confluence of two
factors. The first is the status under the Constitution of partisan
gerrymandering. As we have acknowledged, “[p]olitics and political
considerations are inseparable from districting and apportionment,”
Gaffney v.
Cummings, 412 U. S. 735, 753 (1973) ,
and it is well known that state legislative majorities very often
attempt to gain an electoral advantage through that process. See
Davis v.
Bandemer, 478 U. S. 109, 129 (1986) .
Partisan gerrymandering dates back to the founding, see
Vieth,
supra, at 274–276 (plural-ity opinion), and
while some might find it distasteful, “[o]ur 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.”
Cromartie I,
supra,
at 551 (emphasis in original);
Vera,
supra, at 964
(plurality opinion).
The second factor is that “racial identification
is highly correlated with political affiliation” in many
jurisdictions.
Cromartie II, 532 U. S., at 243
(describing correlation in North Carolina). This phenomenon makes
it difficult to distinguish between political and race-based
decisionmaking. If around 90% of African-American voters cast their
ballots for the Democratic candidate, as they have in recent
elections,[
3] a plan that packs
Democratic voters will look very much like a plans that packs
African-American voters. “[A] legislature may, by placing reliable
Demo-cratic precincts within a district without regard to race, end
up with a district containing more heavily African–American
precincts, but the reasons would be political rather than racial.”
Id., at 245.
A
We addressed this knotty problem in
Cromartie II, which, as noted, came to us after the District
Court had held a trial and found as a fact that the legislature’s
predominant reason for drawing District 12 was race, not politics.
Id., at 239–241. Our review for clear error in that case did
not exhibit the same diffidence as today’s decision. We carefully
examined each piece of direct and circumstantial evidence on which
the District Court had relied and conceded that this evidence
provided support for the court’s finding.
Id., at 257. Then,
at the end of our opinion, we stated:
“We can put the matter more generally as
follows: In a case such as this one where majority-minority
districts (or the approximate equivalent) are at issue and where
racial identification correlates highly with political affiliation,
the party attacking the legislatively drawn boundaries must show at
the least that the legislature could have achieved its legitimate
political objectives in alternative ways that are comparably
consistent with traditional districting principles. That party must
also show that those districting alternatives would have brought
about significantly greater racial balance.”
Id., at
258.
Because the plaintiffs had “failed to make any
such showing,” we held that the District Court had clearly erred in
finding that race predominated in drawing District 12.
Ibid.
Cromartie II plainly meant to establish a
rule for use in a broad class of cases and not a rule to be
employed one time only. We stated that we were “put[ting] the
matter more generally” and were describing what must be shown in
cases “where majority-minority districts (or the approximate
equivalent) are at issue and where racial identification correlates
highly with political affiliation.”
Ibid. We identified who
would carry the burden of the new rule (“the party attacking the
legislatively drawn boundaries”) and what that party must show
(that “the legislature could have achieved its legitimate political
objectives in alternative ways that are comparably consistent with
traditional districting principles” while achieving “significantly
greater racial balance”).
Ibid. And we reversed the finding
of racial predominance due to the plaintiffs’ failure to carry the
burden established by this evidentiary rule.
Ibid.
Here, too, the plaintiffs failed to carry that
burden. In this case, as in
Cromartie II, the plaintiffs
allege a racial gerrymander, and the State’s defense is that
political motives explain District 12’s boundaries. In such a case,
Cromartie II instructed, plaintiffs must submit an
alternative redistricting map demonstrating that the legislature
could have achieved its political goals without the racial effects
giving rise to the racial gerrymandering allegation. But in spite
of this instruction, plaintiffs in this case failed to submit such
a map.[
4] See Brief for
Appellees 31–36. Based on what we said in
Cromartie II about
the same type of claim involving
the same congressional
district, reversal should be a foregone conclusion. It turns
out, however, that the
Cromartie II rule was good for one
use only. Even in a case involving the very same district, it is
tossed aside.
B
The alternative-map requirement deserves
better. It is a logical response to the difficult problem of
distinguishing between racial and political motivations when race
and political party preference closely correlate.
This is a problem with serious institutional and
federalism implications. When a federal court says that race was a
legislature’s predominant purpose in drawing a district, it accuses
the legislature of “offensive and demeaning” conduct.
Miller, 515 U. S., at 912. Indeed, we have said that
racial gerrymanders “bea[r] an uncomfortable re-semblance to
political apartheid.”
Shaw I, 509 U. S., at 647. That
is a grave accusation to level against a state legislature.
In addition, “[f]ederal-court review of
districting legislation represents a serious intrusion on the most
vital of local functions” because “[i]t is well settled that
reapportionment is primarily the duty and responsibility of the
State.”
Miller,
supra, at 915 (internal quotation
marks omitted); see also
Cromartie II, 532 U. S., at
242. When a federal court finds that race predominated in the
redistricting process, it inserts itself into that process. That is
appropriate—indeed, constitutionally required—if the legislature
truly did draw district boundaries on the basis of race. But if 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.
There is a final, often-unstated danger where
race and politics correlate: that the federal courts will be
transformed into weapons of political warfare. Unless courts
“exercise extraordinary caution” in distinguishing race-based
redistricting from politics-based redistricting,
Miller,
supra, at 916, they will invite the losers in the
redistricting process to seek to obtain in court what they could
not achieve in the political arena. If the majority party draws
districts to favor itself, the minority party can deny the majority
its political victory by prevailing on a racial gerrymandering
claim. Even if the minority party loses in court, it can exact a
heavy price by using the judicial process to engage in political
trench warfare for years on end.
Although I do not imply that this is what
occurred here, this case
does reflect what litigation of
this sort can look like. This is the
fifth time that North
Carolina’s 12th Congressional District has come before this Court
since 1993, and we have almost reached a new redistricting cycle
without any certainty as to the constitutionality of North
Carolina’s
current redistricting map. Given these dangers,
Cromartie II was justified in crafting an evidentiary rule
to prevent false positives.[
5]
C
The majority nevertheless absolves the
challengers of their failure to submit an alternative map. It
argues that an alternative map cannot be “the
only means” of
proving racial predominance, and it concludes from this that an
alternative map “does not matter in this case.”
Ante, at
29–30 (emphasis in original). But even if there are cases in which
a plaintiff could prove a racial gerrymandering claim without an
alternative map, they would be exceptional ones in which the
evidence of racial predominance is overwhelming. This most
definitely is not one of those cases, see Part III–C,
infra,
and the plaintiffs’ failure to produce an alternative map mandates
reversal. Moreover, even in an exceptional case, the absence of
such a map would still be strong evidence that a district’s
boundaries were determined by politics rather than race.[
6] The absence of a map would “matter.”
Cf.
ante, at 30.
The majority questions the legitimacy of the
alternative-map requirement,
ante, at 29–31, and n. 15,
but the rule is a sound one. It rests on familiar principles
regarding the allocation of the burdens of production and
persuasion and the assessment of evidence. First, in accordance
with the general rule in civil cases, plaintiffs in a case like
this bear the burden of proving that the legislature’s motive was
unconstitutional. Second, what must be shown is not simply that
race played a part in the districting process but that it played
the predominant role. Third, a party challenging a districting plan
must overcome the strong presumption that the plan was drawn for
constitutionally permissible reasons.
Miller,
supra,
at 915. Fourth, when those responsible for adopting a challenged
plan contend that the plan was devised for partisan political ends,
they are making an admission that may not sit well with voters, so
the explanation should not be lightly dismissed. Cf. Fed. Rule
Evid. 804(b)(3). And finally, the
Cromartie II rule takes
into account the difficulty of proving a negative.
For challengers like those in the present case,
producing a map that meets the
Cromartie II test should not
be hard if the predominant reason for a challenged plan really was
race and not politics. Plaintiffs mounting a challenge to a
districting plan are almost always sophisticated litigants who have
the assistance of experts, and that is certainly true in the
present case. Today, an expert with a computer can easily churn out
redistricting maps that control for any number of specified
criteria, including prior voting patterns and political party
registration. Therefore, if it is indeed possible to find a map
that meets the
Cromartie II test, it should not be too hard
for the challengers to do so. The State, on the other hand, cannot
prove that no map meeting the
Cromartie II test can be
drawn. Even if a State submits, say, 100 alternative maps that fail
the test, that would not prove that no such map could pass it. The
relative ease with which the opposing parties can gather evidence
is a familiar consideration in allocating the burden of production.
See 1 C. Mueller & L. Kirkpatrick, Federal Evidence §63, p. 316
(2d ed. 1994); 21 C. Wright & K. Graham, Federal Practice and
Procedure §5122, pp. 556–557 (1977).
III
Even if we set aside the challengers’ failure
to submit an alternative map, the District Court’s finding that
race predominated in the drawing of District 12 is clearly
erroneous. The State offered strong and coherent evidence that
politics, not race, was the legislature’s predominant aim, and the
evidence supporting the District Court’s contrary finding is weak
and manifestly inadequate in light of the high evidentiary standard
that our cases require challengers to meet in order to prove racial
predominance.[
7]
My analysis will proceed in three steps. First,
I will discuss what the legislature’s mapmaker did and why this
approach is entirely consistent with his stated political
objectives. Then, I will explain why this approach inevitably had
the racial effect to which the challengers object. Finally, I will
address the evidence of racial predominance on which the majority
relies and show why it is inadequate to sustain the District
Court’s judgment.
A
In order to understand the mapmaker’s
approach, the first element to be kept in mind is that the basic
shape of District 12 was legitimately taken as a given. When a new
census requires redistricting, it is a common practice to start
with the plan used in the prior map and to change the boundaries of
the prior districts only as needed to comply with the one-person,
one-vote mandate and to achieve other desired ends. This approach
honors settled expectations and, if the prior plan survived legal
challenge, minimizes the risk that the new plan will be overturned.
And that is the approach taken by the veteran mapmaker in the
present case, Dr. Thomas Hofeller. App. 523 (“the normal starting
point is always from the existing districts”).
Dr. Hofeller began with the prior version of
District 12 even though that version had a strange, serpentine
shape.
Cromartie I, 526 U. S., at 544; App. 1163. That
design has a long history. It was first adopted in 1992, and
subsequent redistricting plans have built on the 1992 plan.
Ibid. In
Cromartie II, we sustained the
constitutionality of the 1997 version of District 12, which
featured the same basic shape. See 532 U. S., at 258. And
retention of this same basic shape is not challenged in this
case.[
8]
Using the prior design as his starting point,
Dr. Hofeller assumed that District 12 would remain a “strong
Democratic distric[t].” App. 521. He stated that he drew “the
[overall redistricting] plan to . . . have an increased
number of competitive districts for GOP candidates,”
id., at
520, and that he therefore moved more Democratic voters into
District 12 in order to “increase Republican opportunities in the
surrounding districts,”
id., at 1606.
Under the map now before us, District 12 is
bordered by four districts.[
9]
Running counterclockwise, they are: District 5 to the northwest;
District 9 to the southwest; District 8 to the southeast; and
District 6 to the northeast. See Appendix,
ante. According
to Dr. Hofeller, the aim was to make these four
districts—considered as a whole—more secure for Republicans. App.
1606, 2696.
To do this, Dr. Hofeller set out in search of
pockets of Democratic voters that could be moved into District 12
from areas adjoining or very close to District 12’s prior
boundaries. Of the six counties through which District 12 passes,
the three most heavily Democratic (and also the most populous) are
Forsyth, Guilford, and Mecklenburg, which contain the major
population centers of Winston-Salem, Greensboro, and Charlotte,
respectively. See 7 Record 480–482; App. 1141. As a measure of
voting preferences, Dr. Hofeller used the results of the then-most
recent Presidential election,
i.e., the election of 2008.
Id., at 1149, 2697, 2721–2722. In that election, these three
counties voted strongly for the Democratic candidate, then-Senator
Barack Obama, while the other three counties, Cabarrus, Davidson,
and Rowan, all voted for the Republican candidate, Senator John
McCain. See 4 Record 1341–1342.
Two of the three Democratic counties, Forsyth
and Guilford, are located at the northern end of District 12, while
the other Democratic county, Mecklenburg, is on the southern end.
See Appendix,
ante. The middle of the district (often called
the “corridor”) passes through the three more Republican-friendly
counties—Cabarrus, Davidson, and Rowan.
Ibid. Thus, if a
mapmaker sat down to increase the proportion of Democrats in
District 12 and to reduce the proportion in neighboring districts,
the most obvious way to do that was to pull additional Democrats
into the district from the north and south (the most populous and
heavily Democratic counties) while shifting Republican voters out
of the corridor.
That, in essence, is what Dr. Hofeller did—as
the majority acknowledges.
Ante, at 6 (Dr. Hofeller
“narrow[ed District 12’s] already snakelike body while adding areas
at either end”); App. 1150 (Table 1), 1163. Dr. Hofeller testified
that he sought to shift parts of Mecklenburg County out of
Districts 8 and 9 (in order to reduce the percentage of Democrats
in these two districts) and that this required him to increase the
coverage of Mecklenburg County in District 12.
Id., at
1142–1143, 1607, 2753.
Dr. Hofeller testified that he also had
political plans for the current map’s District 6, which differed
substantially from the version in the prior map. Dr. Hofeller
wanted to improve the Republicans’ prospects in this new district
by minimizing its coverage of Guilford County’s Democratic
population.
Id., at 1143, 1607, 2693, 2697, 2752. That also
meant increasing the population of Guilford County Democrats in
District 12.
Id., at 1143, 1607, 2697.
This influx of Democratic voters from the two
most populous counties in District 12 required shedding voters
elsewhere in order to comply with this Court’s mandate of
one-person, one-vote, see
Kirkpatrick v.
Preisler,
394 U. S. 526 –531 (1969),[
10] and the population removed had to be added to a
bordering district. App. 523. Parts of Davidson and Rowan Counties
were therefore shifted to District 5,
id., at 1143, 1150
(Table 1), but Dr. Hofeller testified that this would not have been
sufficient to satisfy the one-person, one-vote standard, so he also
had to move voters from heavily Democratic Forsyth County into
District 5,
id., at 1143, 2697, 2752–2753. Doing so did not
undermine his political objective, he explained, because District 5
“was stronger [for Republicans] to begin with and could take those
[Forsyth] Democratic precincts” without endangering Republican
chances in the district.
Id., at 2753; see also
id.,
at 2697. The end result was that, under the new map now at issue,
the three major counties in the north and south constitute a larger
percentage of District 12’s total population, while the corridor
lost population. See
id., at 1150 (Table 1), 2149 (Finding
187).
A comparison of the 2008 Presidential election
vote under the old and new versions of the districts shows the
effect of Dr. Hofeller’s map. District 8 (which, of the four
districts bordering District 12 under the 2011 map, was the most
Democratic district) saw a drop of almost 11% in the Democratic
vote under the new map. See 2 Record 354, 421. District 9 saw a
drop in the percentage of registered Democrats,
id., at 350,
417, although the vote percentage for the Democratic Presidential
candidate remained essentially the same (increasing by 0.39%).
Id., at 354, 421. District 5, which was heavily Republican
under the prior map and was redrawn to absorb Democrats from
Forsyth County, saw about a 7-point swing in favor of the
Democratic candidate, but it remained a strong Republican district.
Ibid. New District 6 is less susceptible to comparison
because its boundaries are completely different from the district
bearing that number under the old plan, but the new District 6 was
solidly Republican, with a Republican Presidential vote percentage
of nearly 56%.
Ibid. As stated by the state court that
considered and rejected the same constitutional challenge now
before us:
“By increasing the number of Democratic
voters in the 2011 Twelfth Congressional District located in
Mecklenburg and Guilford Counties, the 2011 Congressional Plan
created other districts that were more competitive for Republican
candidates as compared to the 2001 versions of these districts
. . . .” App. 2150 (Finding 191).
The results of subsequent congressional
elections show that Dr. Hofeller’s plan achieved its goal. In 2010,
prior to the adoption of the current plan, Democrats won 7 of the
13 districts, including District 8.[
11] But by 2016, Republicans controlled 10 of the 13
districts, including District 8, and all the Republican candidates
for the House of Representatives won their races with at least 56%
of the vote.[
12] In
accordance with the map’s design, the only Democratic seats
remaining after 2016 were in Districts 1, 4, and 12.
Id., at
521.
In sum, there is strong evidence in the record
to sup-port Dr. Hofeller’s testimony that the changes made to the
2001 map were designed to maximize Republican opportunities.
B
I now turn to the connection between the
mapmaker’s strategy and the effect on the percentage of
African-Americans in District 12.
As we recognized in
Cromartie II,
political party preference and race are highly correlated in North
Carolina generally and in the area of Congressional District 12 in
particular. App. 2022 (state trial court finding that “racial
identification correlates highly with political affiliation” in
North Carolina). The challenger’s expert, Dr. Stephen Ansolabehere,
corroborated this important point. Dr. Ansolabehere calculated the
statewide correlation between race and voting in 2008[
13] and found a correlation of 0.8,
which is “very high.”
Id., at 342, 352 (Table 1). See also
J. Levin, J. Fox, & D. Forde, Elementary Statistics in Social
Research 370 (12th ed. 2014); R. Witte & J. Witte, Statistics
138 (10th ed. 2015).
In the area of District 12, the correlation is
even higher. There, Dr. Ansolabehere found that the correlation
“approach[ed] 1,” App. 342, that is, almost complete overlap. These
black Democrats also constitute a supermajority of Democrats in the
area covered by the district. Under the 2001 version of District
12—which was drawn by Democrats and was never challenged as a
racial gerrymander—black registered voters constituted 71.44% of
Democrats in the district. 2 Record 350; see also App. 2145
(Finding 173).[
14] What this
means is that a mapmaker seeking to pull Democrats into District 12
would unavoidably pull in a very large percentage of
African-Americans.
The distribution of Democratic voters magnified
this effect. Dr. Hofeller’s plan required the identification of
areas of Democratic strength that were near District 12’s prior
boundaries. Dr. Hofeller prepared maps showing the distribution of
Democratic voters by precinct,[
15] see
id., at 1148–1149, 1176–1177, 1181, and
those maps show that these voters were highly concentrated around
the major urban areas of Winston-Salem (in Forsyth County),
Greensboro (in Guilford County), and Charlotte (in Mecklenberg
County). Dr. Ansolabehere, the challengers’ expert, prepared maps
showing the distribution of black registered voters in these same
counties, see
id., at 322–328; 1 Record 128–133, and a
comparison of these two sets of maps reveals that the clusters of
Democratic voters generally overlap with those of registered black
voters. In other words, the population of nearby Democrats who
could be moved into District 12 was heavily black.
The upshot is that, so long as the legislature
chose to retain the basic shape of District 12 and to increase the
number of Democrats in the district, it was inevitable that the
Democrats brought in would be disproportionately black.
None of this should come as a surprise. After
all, when the basic shape of District 12 was created after the 1990
census, the express goal of the North Carolina Legislature was to
create a majority-minority district. See
Shaw I, 509
U. S., at 633–636. It has its unusual shape
because it
was originally designed to capture pockets of black voters. See
Shaw v.
Hunt, 517 U. S. 899 –906 (1996) (
Shaw
II). Although the legislature has modified the district since
then, see
Cromartie I, 526 U. S., at 544 (describing
changes from the 1991 version to the 1997 version), “it retains its
basic ‘snakelike’ shape and continues to track Interstate 85.”
Ibid.; 1 Record 35 (Appellees’ Complaint) (“Congressional
District 12 has existed in roughly its current form since 1992,
when it was drawn as a majority African-American district
. . . ”); see also App. 1163 (showing the 1997,
2001, and 2011 versions of District 12). The original design of the
district was devised to ensure a high concentration of black
voters, and as long as the basic design is retained (as it has
been), one would expect that to continue.
While plaintiffs failed to offer any alternative
map, Dr. Hofeller produced a map showing what District 12 would
have looked like if his computer was programmed simply to maximize
the Democratic vote percentage in the district, while still abiding
by the requirement of one-person, one-vote.
Id., at 1148.
The result was a version of District 12 that is very similar to the
version approved by the North Carolina Legislature. See
id.,
at 1175;
id., at 1615–1618. Indeed, this maximum-Democratic
plan had a black voting age population of 50.73%, which is actually
higher than District 12’s black voting age population of
50.66%.
Id., at 1154 (Table 5).
Thus, the increase in the black voting age
population of District 12 is easily explained by a coherent (and
generally successful) political strategy.
Cromartie II, 532
U. S., at 245 (“[A] legislature may, by placing reliable
Democratic precincts within a district without regard to race, end
up with a district containing more heavily African-American
precincts, but the reasons would be political rather than
racial”).
Amazingly, a reader of the majority opinion (and
the opinion of the District Court) would remain almost entirely
ignorant of the legislature’s political strategy and the
relationship between that strategy and the racial composition of
District 12.[
16] The
majority’s analysis is like Hamlet without the prince.[
17]
C
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 far
too much into these references. First, what the plaintiffs had to
prove was not simply that race played
some role in the
districting process but that it was the legislature’s
predominant consideration. Second, as I have explained, a
court must exercise “extraordinary caution” before finding that a
state legislature’s predominant reason for a districting plan was
racial.
Miller, 515 U. S., at 916. This means that
comments should not be taken out of context and given the most
sinister possible meaning. Third, the findings of the state courts
in a virtually identical challenge to District 12 are entitled to
respectful consideration. A North Carolina trial court, after
hearing much the same evidence as the court below, found that the
legislature’s predominant motive was political, not racial. That
decision was affirmed by the North Carolina Supreme Court.
Dickson v
. Rucho, 367 N. C. 542, 766
S. E. 2d 238 (2014), vacated and remanded, 575 U. S. ___,
aff ’d on remand, 368 N. C. 481, 781 S. E. 2d 404
(2015), cert. pending, No. 16–24. Even if the judgment in the state
case does not bar the present case under the doctrine of res
judicata, see
ante, at 7–9, the state-court finding
illustrates the thinness of the plaintiffs’ proof.
Finally, it must be kept in mind that references
to race by those responsible for drawing or adopting a
redistricting plan are not necessarily evidence that the plan was
adopted for improper racial reasons. Under our precedents, it is
unconstitutional for the government to consider race in almost any
context, and therefore any mention of race by the decisionmakers
may be cause for suspicion. We have said, however, that that is not
so in the redistricting context. For one thing, a State like North
Caro-lina that was either wholly or partially within the coverage
of §5 of the Voting Rights Act of 1965 could not redistrict without
heeding that provision’s prohibition against racial retrogression,
see 52 U. S. C. §10304(b);
Alabama Legislative Black
Caucus v.
Alabama, 575 U. S. ___, ___–___ (2015)
(slip op., at 3–4), and therefore race had to be kept in mind. In
addition, all legislatures must also take into account the
possibility of a challenge under §2 of the Voting Rights Act
claiming that a plan illegally dilutes the voting strength of a
minority community. See
League of United Latin American
Citizens v.
Perry, 548 U. S. 399, 425 (2006) . If a
State ultimately concludes that it must take race into account in
order to comply with the Voting Rights Act, it must show that it
had a “ ‘strong basis in evidence’ in support of the
(race-based) choice that it has made.”
Alabama Legislative Black
Caucus,
supra, at ___ (slip op., at 22). But those
involved in the redistricting process may legitimately make
statements about Voting Rights Act compliance before deciding that
the Act does not provide a need for race-based districting. And it
is understandable for such individuals to explain that a
race-neutral plan happens to satisfy the criteria on which Voting
Rights Act challengers might insist. In short, because of the
Voting Rights Act, consideration and discussion of the racial
effects of a plan may be expected.
1
The June 17, 2011, Statement
I begin with a piece of evidence that the
majority does
not mention, namely, the very first item cited
by the District Court in support of its racial-predominance
finding. This evidence consisted of a June 17, 2001, statement by
Senator Rucho and Representative Lewis, the state legislators who
took the lead in the adoption of the current map. In that
statement, Rucho and Lewis referred to “constructing [Voting Rights
Act] majority black districts.” App. 1025. Seizing upon the use of
the plural term “districts,” the court below seemed to think that
it had found a smoking gun.
Harris v.
McCrory, 159
F. Supp. 3d 600, 616 (MDNC 2016)
. The State had
insisted that its plan drew only one majority-minority
congressional district, District 1, but since the June 17 statement
“clearly refers to multiple districts that are now majority
minority,”
ibid., the court below viewed the statement as
telling evidence that an additional congressional district,
presumably District 12, had been intentionally designed to be a
majority-minority district and was thus based on race.
There is a glaring problem with this analysis:
The June 17 statement was about
state legislative districts,
not
federal congressional districts. See App. 1024–1033. The
United States, as
amicus curiae in support of plaintiffs,
concedes that the District Court made a mistake by relying on the
June 17 statement. Brief for United States 27, n. 13. The
majority, by contrast, tries to ignore this error. But the District
Court gave the June 17 statement pride-of-place in its opinion,
mentioning it first in its analysis, and the District Court seemed
to think that this evidence was particularly significant, stating
that the reference to multiple districts was not “the result of
happenstance, a mere slip of the pen.” 159 F. Supp. 3d, at
616. The District Court’s error shows a troubling lack of
precision.
2
The §5 Preclearance Request
Under §5 of the Voting Rights Act, North
Carolina requested preclearance from the Department of Justice
shortly after the Legislature approved the new congressional plan.
Id., at 608. In its preclearance application, the State
noted that “[o]ne of the concerns of the Redistricting Chairs was
that in 1992, the Justice Department had objected to the 1991
Congressional Plan because of a failure by the State to create a
second majority minority district.” App. 478. The application says
that the Redistricting Chairs “sought input from Congressman [Mel]
Watt[, the African-American incumbent who represented District 12,]
regarding options for re-drawing his district,” and that after this
consultation, “the Chairs had the impression that Congressman Watt
would oppose any redrawing of the Twelfth District . . .
as originally contemplated by the 1992 Justice Department
objection.”
Ibid. The Chairs drew District 12
“[b]ased in part on this input from Congressman Watt.”
Id., at 478–479. Two sentences later in the same paragraph,
the application observed that the black voting age population for
District 12 went up from 43.77% to 50.66% and that therefore the
district “maintains, and in fact increases, the African-American
community’s ability to elect their candidate of choice in District
12.”
Id., at 479.
According to the majority, this statement shows
a “determination to concentrate black voters in District 12.”
Ante, at 23. In fact, it shows no such thing. The statement
explains that Senator Rucho and Representative Lewis decided
not to construct District 12 as a majority-minority
district—as the 1992 Justice Department had demanded—“[b]ased in
part on” the input they received from Congressman Watt, whom they
thought “would oppose” drawing the district “as originally
contemplated by the 1992 Justice Department objection.” App.
478–479. If anything, this document cuts
against a finding
of racial predominance.
The statement’s matter-of-fact reference to the
increase in District 12’s black voting age population hardly shows
that the legislature altered District 12
for the purpose of
causing this increase. An entirely natural interpretation is that
the Redistricting Chairs simply reported this fact so that it would
be before the Justice Department in the event that the Department
had renewed Voting Rights Act concerns. Only by reading a great
deal between the lines and adopting the most sinister possible
interpretation can the statement be viewed as pointed evidence of a
predominantly racial motive.
3
The Mel Watt Testimony
In both the District Court and the state trial
court, Congressman Watt testified that, while the redistricting
plan was being developed, Senator Rucho invited him to his home to
discuss the new boundaries of District 12.
Id., at
2368–2369, 1343–1344. According to Congressman Watt, Senator Rucho
said that the Republican leadership wanted him to “ramp the 12th
Congressional District up to over 50 percent black” because “they
believed it was required . . . by the Voting Rights Act.”
Id., at 1344, 2369, 2393. In the state proceedings, Senator
Rucho denied making any such statement,
id., at 1703, and
another state legislator present at the meeting, Representative
Ruth Samuelson, gave similar testimony,
id., at 1698.
Neither Senator Rucho nor Representative Samuelson testified in
federal court (although their state court testimony was made part
of the federal record). See
id., at 2847. But the District
Court credited Congressman Watt’s testimony based on its assessment
of his demeanor and the consistency of his recollection, 159
F. Supp. 3d, at 617–618, and I accept that credibility finding
for purposes of our review.[
18]
But even assuming that Congressman Watt’s
recollection was completely accurate, all that his testimony shows
is that legislative leaders
at one point in the process
thought that they had to draw District 12 as a majority-minority
district in order to comply with the Voting Rights Act; it does
not show that they actually
did draw District 12 with
the goal of creating a majority-minority district. And as explained
in the discussion of the preclearance request above, Senator Rucho
and Representative Lewis stated that they ultimately turned away
from the creation of a majority-minority district after consulting
with Congressman Watt.
“Based in part on this input from
Congressman Watt,” they said they decided
not to draw the
district as the 1992 Department of Justice had suggested—that is,
as a majority-minority district. App. 478–479.
This account is fully consistent with
Congressman Watt’s testimony about his meeting with Senator Rucho.
Congressman Watt noted that Senator Rucho was uncomfortable with
the notion of increasing the black voting age population,
id., at 2369, 2393, and Congressman Watt testified that he
told Senator Rucho that he was opposed to the idea,
id., at
1345, 2369, 2393. So it makes sense that Senator Rucho was
dissuaded from taking that course by Congressman Watt’s reaction.
And Dr. Hofeller consistently testified that he was never asked to
meet a particular black voting age population target, see Part
III–C–5,
infra, and that the only data displayed on his
screen when he drew District 12 was political data. See
infra, at 27, n. 19. Thus, Congressman Watt’s testimony,
even if taken at face value, is entirely consistent with what the
preclearance request recounts: After initially contemplating the
possibility of drawing District 12 as a majority-minority district,
the legislative leadership met with Congressman Watt, who convinced
them not to do so.
4
Dr. Hofeller’s Statements About Guilford
County
Under the prior map, both Guilford County and
the Greensboro African-American community were divided between the
12th and 13th Districts. This had been done, Dr. Hofeller
explained, “to make both the Old 12th and 13th Districts strongly
Democratic.” App. 1103; see also
id., at 555, 2821; 1 Record
132–133 (showing racial demographics of Guilford precincts under
2001 and 2011 maps). But the Republican legislature wanted to make
the area surrounding District 12 more Republican. The new map
eliminated the old 13th District and created a new district bearing
that number farther to the east. The territory to the north of
Greensboro that had previously been in the 13th District was placed
in a new district, District 6, which was constructed to be a
Republican-friendly district, and the new map moved more of the
Greensboro area into the new District 12. This move was entirely
consistent with the legislature’s stated goal of concentrating
Democrats in the 12th District and mak-ing the surrounding
districts hospitable to Republican candidates.
Dr. Hofeller testified that the placement of the
Greensboro African-American community in the 12th District was the
result of this political strategy. He stated that the portion of
Guilford County absorbed by District 12 “wasn’t moved into
CD 12 because it had a substantial black population. It was
moved into CD 12 because it had a substantial Democratic
political voting record . . . .” App. 2824. And
Dr. Hofeller maintained that he was never instructed to draw
District 12 as a majority-minority district or to increase the
district’s black voting age population. See,
e.g.,
id., at 520, 556–558, 1099, 1603–1604, 2682–2683, 2789.
Instead, he testified that political considerations determined the
boundaries of District 12 and that the only data displayed on his
computer screen when he drew the challenged map was voting data
from the 2008 Presidential election.[
19]
Id., at 1149, 2697, 2721–2722.
Dr. Hofeller acknowledged, however, that there
had been concern about the possibility of a Voting Rights Act
challenge to this treatment of the Greensboro African-American
community. Guilford County was covered by §5 of the Voting Rights
Act, and as noted, §5 prohibits retrogression. Under the old map,
the Guilford County African-American community was split between
the old District 13 and District 12, and in both of those
districts, black voters were able to elect the candidates of their
choice by allying with white Democratic voters. Under the new map,
however, if the Greensboro black community had been split between
District 12 and the new Republican-friendly District 6, the black
voters in the latter district would be unlikely to elect the
candidate of their choice. Placing the African-American community
in District 12 avoided this consequence. Even Congressman Watt
conceded that there were potential §5 concerns relating to the
black community in Guilford County.
Id., at 2387–2388.
The thrust of many of Dr. Hofeller’s statements
about the treatment of Guilford County was that the reuniting of
the Greensboro black community in District 12 was nothing more than
a welcome byproduct of his political strat-egy. He testified that
he
first drew the district based on political considerations
and
then checked to ensure that Guilford County’s black
population was not fractured.
Id., at 2822 (“[W]hen we
checked it, we found that we did not have an issue in Guilford
County with fracturing the black . . . community”); see
also
id., at 556, 2821, 2823. This testimony is entirely
innocuous.
There is no doubt, however, that Dr. Hofeller
also made a few statements that may be read to imply that concern
about Voting Rights Act litigation was part of the motivation for
the treatment of Guilford County. He testified at trial that he
“was instructed [not] to use race in any form
except perhaps
with regard to Guilford County.”
Id., at 2791 (emphasis
added). See
id., at 1103 (the legislature “determined that
it was prudent to reunify the African-American community in
Guilford County”);
id., at 558 (“[I]t was decided to reunite
the black community in Guilford County into the Twelfth”).
These statements by Dr. Hofeller convinced the
District Court that the drawing of District 12 was not a “purely
. . . politically driven affair.” 159 F. Supp. 3d,
at 619. But in order to prevail, the plaintiffs had to show much
more—that race was the
predominant reason for the drawing of
District 12, and these few bits of testimony fall far short of that
showing.
Our decision in
Cromartie II illustrates
this point. In that case, the legislature’s mapmaker made a
statement that is remarkably similar to Dr. Hofeller’s. Gerry
Cohen, the “legislative staff member responsible for drafting
districting plans,” reported: “ ‘I have moved Greensboro Black
community into the 12th, and now need to take [about] 60,000 out of
the 12th. I await your direction on this.’ ” 532 U. S.,
at 254. This admission did not persuade the Court that the
legislature’s predominant motive was racial. The majority ignores
this obvious parallel with
Cromartie II.
Moreover, in an attempt to magnify the
importance of the treatment of Guilford County, the majority plays
games with statistics. It states that “District 12 saw a net
increase of more than 25,000 black voters in Guilford County,
relative to a net gain of fewer than 35,000 across the district: So
the newly added parts of that county played a major role in pushing
the district’s BVAP over 50%.”
Ante, at 26.
This is highly misleading. First, since the
black voting age population of District 12 is just barely over
50%—specifically, 50.66%—almost
any decision that increased
the number of voting age blacks in District 12 could be said to
have “played a major role in pushing the district’s BVAP over
50%.”
Second, the majority provides the total number
of voting age blacks added to District 12 from Guilford County
(approximately 25,000) alongside the total number of voting age
blacks added to the district (approximately 35,000), and this has
the effect of making Guilford County look like it is the
overwhelming contributor to the district’s net increase in black
voting age population. In truth, Mecklenburg County was by far the
greatest contributor of voting age blacks to District 12 in both
absolute terms (approximately 147,000) and in terms of new voting
age blacks (approximately 37,000). See App. 384, 500–502. Indeed,
if what matters to the majority is how much individual counties
increased District 12’s black voting age population percentage,
Davidson County deserves attention as well, since the portion of
the county within District 12 lost over 26,000 more voting age
whites than blacks.
Ibid. That is greater than the net
number of voting age blacks added to the district by Guilford
County or Mecklenburg County.
Ibid. As with so much in the
majority opinion, the issue here is more nuanced—and much more
favorable to the State—than the majority would have it seem.
5
The July 1, 2011, Statement
For reasons similar to those just explained,
the majority makes far too much of a statement issued by Senator
Rucho and Representative Lewis on July 1, 2011, when the new
districting plan was proposed. Particularly in light of Dr.
Hofeller’s later testimony about the legislature’s partisan
objectives, it is apparent that this statement does not paint an
entirely reliable picture of the legislature’s aims. The statement
begins with this proclamation: “From the beginning, our goal has
remained the same: the development of fair and legal congressional
and legislative districts,”
id., at 353, and the statement
seriously downplays the role of politics in the map-drawing
process, acknowledging only that “we have not been ignorant of the
partisan impacts of the districts we have created,”
id., at
361.
The statement discusses the treatment of
Guilford County in a section with the heading “Compliance with the
Voting Rights Act.”
Id., at 355–358. In that section, Rucho
and Lewis state: “Because of the presence of Guilford County in the
Twelfth District, we have drawn our proposed Twelfth District at a
black voting age level that is above the percentage of black voting
age population found in the current Twelfth District. We believe
that this measure will ensure preclearance of the plan.”
Id., at 358.
The majority and the District Court interpret
this passage to say that Rucho and Lewis decided to move black
voters from Guilford County into District 12 in order to ward off
Voting Rights Act liability.
Ante, at 22 (“
Because of
the VRA, [Rucho and Lewis] increased the number of
African-Americans” in District 12 (citing 159 F. Supp. 3d, at
617; emphasis in original)). But that is hardly the only plausible
interpretation. The statement could just as easily be understood as
“an explanation by [the] legislature that
because they chose
to add Guilford County back into CD 12, the district ended up
with an increased ability to elect African-American candidates,
rather than the legislature explaining that they chose to add
Guilford County back into CD 12 because of the [racial]
results that addition created.”
Id., at 635 (Osteen, J.,
concurring in part and dissenting in part) (emphasis in original).
And because we are obligated to presume the good faith of the North
Carolina Legislature, this latter interpretation is the appropriate
one.
But even if one adopts the majority’s
interpretation, it adds little to the analysis. The majority’s
close and incriminating reading of a statement issued to win public
support for the new plan may represent poetic justice: Having
attempted to blur the partisan aim of the new District 12, the
legislature is hoisted on its own petard. But poetic justice is not
the type of justice that we are supposed to dispense. This
statement is
some evidence that race played a role in the
drawing of District 12, but it is a mistake to give this political
statement too much weight.
Again, we made precisely this point in
Cromartie II. There, the “legislative redistricting leader,”
then-Senator Roy Cooper, testified before a legislative committee
that the proposed plan “ ‘provides for . . .
racial and partisan
balance.’ ” 532 U. S.,
at 253 (emphasis added). The District Court read the statement
literally and concluded that the district had been drawn with a
racial objective.
Ibid. But this Court dismissed the
statement, reasoning that although “the phrase shows that the
legislature considered race, along with other partisan and
geographic considerations; . . . it says little or
nothing about whether race played a
predominant role
comparatively speaking.”
Ibid.
What was good in
Cromartie II should also
be good here.
6
Dr. Ansolabehere’s Testimony
Finally, the majority cites Dr. Ansolabehere’s
testimony that black registered voters in the counties covered by
District 12 were more likely to be drawn into District 12 than
white registered voters and that black registered Democrats were
more likely to be pulled in than white registered Democrats.
Ante, at 26–27.
There is an obvious flaw in Dr. Ansolabehere’s
analysis. He assumed that, if race was not the driving force behind
the drawing of District 12, “white and black registered voters
would have approximately the same likelihood of inclusion in a
given Congressional District.” App. 2597 (internal quotation marks
omitted). But that would be true only if black and white voters
were
evenly distributed throughout the region, and his own
maps showed that this was not so. See
id., at 322–328; 1
Record 128–133. Black voters were concentrated in the cities
located at the north and south ends of the district and constituted
a supermajority of Democrats in the area covered by District 12.
See Part III–B,
supra. As long as the basic shape of the
district was retained, moving Democrats from areas outside but
close to the old district boundaries naturally picked up far more
black Democrats than white Democrats.
This explanation eluded Dr. Ansolabehere because
he refused to consider either the implications of the political
strategy that the legislature claimed to have pursued or the
effects of the changes to District 12 on the surrounding districts.
App. 2578–2582. The result was a distorted—and largely
useless—analysis.
IV
Reviewing the evidence outlined
above,[
20] two themes
emerge. First, District 12’s borders and racial composition are
readily explained by political considerations and the effects of
the legislature’s political strategy on the demographics of
District 12. Second, the majority largely ignores this explanation,
as did the court below, and instead adopts the most damning
interpretation of all available evidence.
Both of these analytical maneuvers violate our
clearly established precedent. Our cases say that we must
“ ‘exercise extraordinary caution’ ” “ ‘where the
State has articulated a legitimate political explanation for its
districting decision,’ ”
Cromartie II,
supra, at
242 (emphasis deleted); the majority ignores that political
explanation. Our cases say that “the good faith of a state
legislature must be presumed,”
Miller, 515 U. S., at
915; the majority presumes the opposite. And
Cromartie II
held that plaintiffs in a case like this are obligated to produce a
map showing that the legislature could have achieved its political
objectives without the racial effect seen in the challenged plan;
here, the majority junks that rule and says that the plaintiffs’
failure to produce such a map simply “does not matter.”
Ante, at 30.
The judgment below regarding District 12 should
be reversed, and I therefore respectfully dissent.