The U.S. Supreme Court has made clear over the past quarter century that racial gerrymandering is an unconstitutional no-no, but partisan gerrymandering is still permissible. The question is: How do you tell the difference? Especially when the Voting Rights Act allows for some consideration of race to ensure minority representation, and when party affiliation often correlates with race.
In cases from Virginia and North Carolina, the Supreme Court seemed unsure on Monday how to balance these mandates.
In Virginia, the Republican state Legislature drew 12 state legislative districts, each with a 55 percent African-American majority. The Legislature argues that it was just trying to meet the requirements of the Voting Rights Act.
In the Supreme Court chamber, lawyer Paul Clement, representing the Legislature, portrayed the Virginia line-drawing as a "bipartisan success story" and noted that only two members of the black caucus voted against it. But Marc Elias, representing the other side, said the Legislature had created a "one size fits all" redistricting that places voters in or out of districts "based solely on the color of their skin."
Justice Anthony Kennedy seemed to agree, but Justice Samuel Alito said the whole controversy looked to him like little more than an "invitation for litigation."
On the steps of the Supreme Court after the argument, Elias noted that prior to the redistricting, black candidates were winning elections even in districts where African-American voters were in the minority.
"The idea that those percentages needed to be ramped up was not a function of what was necessary by the Voting Rights Act or to help the African-American community," he said. "It was racial sorting, pure and simple."
In Monday's second case, from North Carolina, lawyers Elias and Clement were back at the lectern. At issue were two congressional districts drawn by Republicans, who hold the majority in the North Carolina state Legislature.
Clement, representing the Republicans, said one district was drawn to comply with the Voting Rights Act while the other was "an avowedly political draw," meaning it was drawn to maximize partisan advantage.
Justice Elena Kagan interrupted: Suppose a state wants "to segregate all the African-American voters" but then it "[justifies] it based on politics, because that sounds better"? Was Clement suggesting that the challengers would have to present their own alternative maps?
"Yes," Clement answered. If they've got all that direct evidence of a racial motive, the alternative map drawing "should be a breeze."
"Not so easy," replied Kagan, "because we know that race and politics correlate," but "if race is the motive, you get one result, and if politics is your motive, you get another."
Justice Stephen Breyer diagnosed the problem as a set of existing legal standards that lower courts can't seem to apply. State legislatures need standards that enable them to separate the "sheep from the goats," he said, so that every case won't come up to the Supreme Court for the justices to spend the entire term reviewing 5,000-page records.
When Elias returned to the lectern for the Democrats, he said one of the challenged districts in North Carolina needed only 2,800 more voters to reach the target number for its population. Instead, he said, lawmakers changed the district lines to move in 75,000 African-Americans while moving out an equal number of whites. That, he suggested, "corralled" black voters to minimize their influence in neighboring districts.
In rebuttal, lawyer Clement said the fact that legislators "brought in a bunch of African-Americans because they were trying to bring in Democrats is about as interesting as the sun coming up in North Carolina."
With a conundrum to resolve, the Supreme Court is expected to announce its decision by June.