If North Carolina prevails in a key Supreme Court case that will be argued this fall, the resulting racial and political gerrymandering might make 2012, not 2008, the year when a Democratic tide floods the halls of Congress. The damage to the Constitution, however, would be even worse than the damage to Republican interests.
The next round of redistricting will not start before 2011, after the results of the 2010 Census have been distributed, but the Supreme Court has agreed to hear a case styled Bartlett v. Strickland that may have a significant impact on that process. In that case, North Carolina asks the Supreme Court to break new ground and hold that Section 2 of the federal Voting Rights Act requires the drawing of so-called "crossover districts." In such a crossover district, the population of a racial minority, almost always African-American, is less than 50% but still, allegedly, large enough to elect the candidates of its choice when voters of the racial majority join with them. North Carolina's position is badly flawed, and the Supreme Court should reject it.
To date, the Supreme Court has not said that Section 2 requires the drawing of crossover districts, although it has noted the issue without resolving it. It has, however, rejected a variant of this argument; in the post-1990 round of redistricting, some thought that Section 2 required the drawing of a black majority district when possible. The Supreme Court rejected a plan based on that "max-black" theory in 1995. That rejection was part of a series of decisions in which the Court concluded that putting voters in districts because of their race without regard for traditional, race-neutral redistricting criteria was unconstitutional. A "max-crossover" theory, which is the clear implication of North Carolina's argument, is little more than a repackaging of the discredited "max-black" theory.
THE SUPREME COURT HAS ALSO set out a test for determining when Section 2 requires the drawing of an African-American majority district. The first part of that three-part test looks at whether a minority population is "sufficiently large and compact enough to constitute a majority in a single-member district." The Court was concerned about claims of vote dilution; if a minority is sufficiently large to constitute a majority in a district, splitting it up would dilute its voting power. Applying the three-part test, lower federal courts have consistently rejected the contention that minority voters who would not constitute a majority in a single-member district have the right to have a crossover district drawn in their favor. The North Carolina Supreme Court likewise rejected North Carolina's contention; the district at issue in Bartlett v. Strickland has a voting age population that is only 39.96% African-American.
The North Carolina Supreme Court's ruling is consistent with the text of Section 2, which nowhere says that it requires the drawing of crossover districts. To the extent that it looks at whether the members of a protected minority "have less opportunity than other members of the electorate...to elect representatives of their choice," Section 2 reads contrary to North Carolina's position. Drawing a crossover district that favors the interests of a group that constitutes only 39.96% of the district's voting-age population gives that group more opportunity to elect representatives of their choice than other citizens. For everyone else, the candidate with 39.96% of the vote loses. Section 2 also says that "[n]othing" in it "establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." In short, if Section 2 says anything, what it says does not support North Carolina's position.
Furthermore, by its terms, Section 2 is about racial minorities, not political parties. In application, it morphs into politics because African-Americans are exceptionally reliable Democratic voters. If North Carolina prevails, the resulting district, with a voting age population that is 39.96% black, is likely to result in the election of a Democrat because that will be the representative of the minority's choice. So will the representatives in all of the crossover districts that will have to be created in the next round of redistricting. The resulting warrant for racial and political gerrymandering will turn the Voting Rights Act into a club that beats Republicans.
A DECISION THAT Section 2 requires the drawing of crossover districts will have other dramatic consequences in the next round of redistricting as well. The redistricting plans that State legislatures and local bodies drew after the 2000 Census were premised on the understanding that Section 2 did not require the drawing of crossover districts. If such a district must be created where possible, the lines in many districting plans will have to change, sometimes substantially, and election officials and voters will have to cope with those changes.
So will courts. Properly viewed, redistricting is the job of legislative bodies, not the courts. Courts have no business doing, and should have no inclination to do, the fine political work involved in calculating whether 39.96% of a district's voting age population is sufficient to allow the minority to elect the representative of its choice. A different percentage may be sufficient elsewhere in the same or a different state or locality. If anyone is to create a crossover district, it should be a legislative body, and, when a legislative body creates one, the resulting plan should not otherwise violate state law. If North Carolina prevails, though, proponents of crossover districts will have a new entitlement to use to try to create them in the courts and to attack legislatively enacted plans they do not like.
The last thing the redistricting process needs is more litigation, something that North Carolina's position only encourages. That position gets no support from the text of Section 2, judicial precedent, or sound policy. The United States Supreme Court should say as much.