Analysis

If a legal formula on drawing new election districts to try to help minority voters has worked for more than 20 years, as the federal government insists, the Supreme Court might not have any interest in replacing it unless there were a clear and better alternative.  The Court spent an hour Tuesday talking about different approaches, in Bartlett v. Strickland ((07-689), but found the inquiry confusing, frustrating and inconclusive.  The odds seemed long that the meaning of Section 2 of the Voting Rights Act might be significantly modified.

The case involves an attempt, by North Carolina state officials, to do away with the requirement that, in order to complain that their voting strength will be illegally diluted by a districting plan, minority voters must have a 50-plus percentage majority before a district has to be drawn to give them a chance to prevail.  The federal government, taking part in the case, argues that that formula has been followed successfully across the country for more than two decades and, if anything, needs only a little tweaking now to satisfy Section 2.

The state, however, is attempting to defend a plan, struck down by the state supreme court under the 50.1 percent rule, that has only a 39-plus percentage black population.  In that particular district, enough white voters have joined ranks with the blacks to form a winning coalition — thus, theirs is a “coalition district.” The state’s appeal seeks Supreme Court approval of “coalition districts” as a way to avoid a Section 2 violation.

As the hearing Tuesday unfolded, the Court lurched between concern over putting new emphasis on race as a redistricting factor, puzzlement over where the percentage line might be drawn differently, unwillingness to get more deeply involved in second-guessing redistricting, and uncertainty over the way to judge how voters might act in the future as a key to making election arrangements in the present.

As soon as North Carolina’s solicitor general, Christopher G. Browning, Jr., opened with a rhetorical plea for the Court to help foster “a society where race no longer matters,” he immediately ran into complaints that the state was pushing for just the opposite.

To Browning’s suggestion that “coalition districts” will help lead to “an integrated society,” Chief Justice John G. Roberts, Jr., swiftly retorted: “How can you say that this brings us closer to a situation where race will not matter when it expands the number of situations in which redistricting authorities have to consider race?”  Justice Anthony M. Kennedy soon chimed in: “Under your definition of coalition district, race is the key factor…And you are telling us if we have a rule that makes race the key factor then race doesn’t matter.”

Browning tried to show that, because of Section 2′s focus on vote-dilution for black voters, race was a necessary factor in election line-drawing, but Kennedy said that was not so, that there was no prior case requiring that race be considered in drawing districts, and that “it’s a new proposition that you are arguing for us here.”

The Justices then turned to analyzing the implications of abandoning the 50-plus rule, testing Browning on where to draw the line, in the percentage of white crossover voters that would be needed before a state need not create a race-driven district to get around minority vote-dilution. He conceded, in general, that voting support from whites might grow so great that Section 2 would not require a correction to favor minority voters, but said “we’re not there yet.”

Justice Samuel A. Alito, Jr., interpreted the concession to mean that North Carolina was simply arguing for a different percentage figure than the other side’s 50-plus, implying that there was no reason to switch just to be different.  Alito tried without success to pin down the state’s lawyer on when crossover white voting would be high enough to prevent minority candidates from routinely losing, and thus avert a Section 2 violation.  The Chief Justice tried the same tack, as did Justice Antonin Scalia, but similarly got no direct answer.

Justice Ruth Bader Ginsburg came out in implied defense of the 50-plus approach, saying it was a bright-line approach and telling Browning that he did not have an alternative “that would give district courts and attorneys some degree of security” about “what’s in and what’s out.”

After exchanges over what Section 2 would require, in North Carolina’s view, in fashioning less-than-50 percent districts, Browning was broadly challenged by Justice Scalia, who said that “what you propose is going to inject courts into the drawing of districts much more frequently than they already are injected….You just can’t wave a magic wand.”  Legislatures, Scalia argued, are going to draw districts to favor incumbents, even if that is contrary to giving all voters a chance to prevail in their districts.  “I have always regarded the 50 percent…thing as simply a self-protection prescription for the courts.”

The county officials and voters who opposed the specific state district at issue fervently embraced the 50-percent rule.  Their attorney, Carl W. Thurman III of Wilmington, N.C., picked up on Justice Scalia’s contention that abandoing that rule would lead to “judicial involvement in many, many more situations,,” and would compel legislatures — contrary to the Voting Rights Act — to draw plans to maximize minority voting strength, not simply avoid dilution of it.  He said that a switch in approach would affect every legislative body, across the board, because all of them must obey Section 2.

Thurman’s argument bogged down considerably as the Justices wondered why, during lower court proceedings in the case, the challengers had stipulated away a key point on proof that the defenders of the district had to offer to make a Section 2 complaint.  He simply said that the maneuver was done simply to move the case along, but the Chief Justice said it complicated the case “on a rather critical point.”

When the hearing got back on track, on possible alternatives to the 50-percent rule, Thurman argued that abandoning that “very clear, very limited sort of rule” would lead to race becoming “the predominant factor in the redistricting decision.”  Minorities with as little as 25 percent of a district’s population, he said, would be claiming vote-dilution.

Justice Stephen G. Breyer took Thurman through a lengthy exchange, reaching a bottom line in which the Justice suggested that a workable alternative rule would be one in which minority voters would be entitled to an election district if they had a minimum 2-to-1 ratio to white crossover voters .  Taking the district at issue, Brearner yer noted, the 39-plus minority could prevail if it could garner support from an 11-plus white crossover vote.

“So,” Breyer said, “there’s a kind of natural stopping place… You insist that the black group had to be twice as many as the white group that crossed over.  A little arbitrary, but at least we were getting to the right thing.”  Thurman countered that, whenever “you start dropping below 50 percent,” minority voters are not being given an equal opportunity in elections, but a more than equal opportunity compared to other groups.

Justice John Paul Stevens suggested that “a rigid 51 percent rule assumes that the minority communities throughout the country are all alike,” but in reality different approaches might have to be taken in different communities, depending on local circumstances.

For the federal government, Daryl Joseffer, an assistant to the U.S. Solicitor General, arguing in favor of the challengers to the North Carolina district, sought to buttress the worries of some of the Justices that expansion of Section 2′s coverage would raise a host of problems, including “serious constitutional concerns,” including racial gerrymandering and partisan gerrymandering.  He also argued that a new approach would “require difficult predictive judgments about how people would react, how people would vote in a future proposed district” — problems not encountered under the approach now being employed.

Joseffer did not argue, however, for a rigid 50-plus rule.  He said the rule could have a built-in plus-or-minus factor of 2 percent.  Calculating the percentages resulting from such variations, he argued, would not be more difficult than trying to determine when a group had 50 percent.

Posted in Bartlett v. Strickland, Uncategorized