Cooper v. Harris

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This case concerns the most recent redrawing of two North Carolina congressional districts. District 1 is located in the northeastern part of the state with appendages stretching to the south and west into Durham. District 12 begins in the Charlotte area and then extends in an irregular fashion to the state’s northern border. The composition of both districts has been before the Supreme Court on several previous occasions.

The particular district configurations challenged here were enacted following the 2010 census. Because of population changes since the previous census, changes in the state’s congressional districts were required. State House Representative David Lewis and State Senator Robert Rucho, both Republicans, chaired the legislative committees in charge of drafting a redistricting bill. They hired experienced political mapmaker Dr. Thomas Hofeller to assist them.

 District 1 had become underpopulated, and the state needed to add approximately 100,000 people to the district to comply with the Constitution’s one person/one vote standard. To accomplish this, Rucho, Lewis, and Hofeller developed a proposal that moved large numbers of voters from African American neighborhoods in Durham area into District 1. Doing so raised the district’s Black voting age population [BVAP] from 48.6 percent to 52.7 percent. District 12 was slightly overpopulated by about 3,000 people. As a consequence, the district needed little modification to satisfy the equal population requirement, but the proposed reapportionment plan significantly altered the district boundaries. As a result, the district gained 35,000 voting age African Americans and lost 50,000 voting age Whites (along with some additional minor changes that preserved the overall population goal). This altered the voting age population of the district from 43.8 percent to 50.7 percent African American. The state legislature approved the proposal.

David Harris and Christine Bowser, registered voters from the respective districts, brought suit against Governor Roy Cooper and the state, complaining that the two districts had been unconstitutionally gerrymandered on the basis of race. The state countered with the argument that the District 1 boundaries were drawn in compliance with the Voting Rights Act of 1965 to ensure against diluting Black voting strength and that the new configuration of District 12 was based on partisan political considerations rather than race. A three-judge district court concluded that race unconstitutionally dominated the redesigned configurations of both congressional districts. The state appealed to the Supreme Court.


JUSTICE KAGAN delivered the opinion of the Court.

The Equal Protection Clause of the Fourteenth Amendment limits racial gerrymanders in legislative districting plans. It prevents a State, in the absence of “sufficient justification,” from “separating its citizens into different voting districts on the basis of race.” Bethune-Hill v. Virginia State Bd. of Elections (2017). When a voter sues state officials for drawing such race-based lines, our decisions call for a two-step analysis.

First, the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller vJohnson (1995). That entails demonstrating that the legislature “subordinated” other factors—compactness, respect for political subdivisions, partisan advantage, what have you—to “racial considerations.” . . .

Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny. The burden thus shifts to the State to prove that its race-based sorting of voters serves a “compelling interest” and is “narrowly tailored” to that end. This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965 [Shaw v. Hunt (1996) (Shaw II)].

Two provisions of the VRA—§2 and §5—are involved in this case. Section 2 prohibits any “standard, practice, or procedure” that “results in a denial or abridgement of the right . . . to vote on account of race.” We have construed that ban to extend to “vote dilution”—brought about, most relevantly here, by the “dispersal of [a group’s members] into districts in which they constitute an ineffective minority of voters.” Thornburg vGingles (1986). Section 5, at the time of the districting in dispute, worked through a different mechanism. Before this Court invalidated its coverage formula, see Shelby County vHolder (2013), that section required certain jurisdictions (including various North Carolina counties) to pre-clear voting changes with the Department of Justice, so as to forestall “retrogression” in the ability of racial minorities to elect their preferred candidates.

When a State invokes the VRA to justify race-based districting, it must show (to meet the “narrow tailoring” requirement) that it had “a strong basis in evidence” for concluding that the statute required its action. Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines. 

A district court’s assessment of a districting plan, in accordance with the two-step inquiry just described, warrants significant deference on appeal to this Court. We of course retain full power to correct a court’s errors of law, at either stage of the analysis. But the court’s findings of fact—most notably, as to whether racial considerations predominated in drawing district lines—are subject to review only for clear error. Under that standard, we may not reverse just because we “would have decided the [matter] differently.” Anderson vBessemer City (1985). A finding that is “plausible” in light of the full record—even if another is equally or more so—must govern.

* * *

With that out of the way, we turn to the merits of this case, beginning (appropriately enough) with District 1. . . . [T]he court below found that race furnished the predominant rationale for that district’s redesign. And it held that the State’s interest in complying with the VRA could not justify that consideration of race. We uphold both conclusions.

Uncontested evidence in the record shows that the State’s mapmakers, in considering District 1, purposefully established a racial target: African-Americans should make up no less than a majority of the voting-age population. Senator Rucho and Representative Lewis were not coy in expressing that goal. They repeatedly told their colleagues that District 1 had to be majority-minority, so as to comply with the VRA. During a Senate debate, for example, Rucho explained that District 1 “must include a sufficient number of African-Americans” to make it “a majority black district.” Similarly, Lewis informed the House and Senate redistricting committees that the district must have “a majority black voting age population.” And that objective was communicated in no uncertain terms to the legislators’ consultant. Dr. Hofeller testified multiple times at trial that Rucho and Lewis instructed him “to draw [District 1] with a [BVAP] in excess of 50 percent.”

Hofeller followed those directions to the letter, such that the 50%-plus racial target “had a direct and significant impact” on District 1’s configuration. In particular, Hofeller moved the district’s borders to encompass the heavily black parts of Durham (and only those parts), thus taking in tens of thousands of additional African-American voters. That change and similar ones, made (in his words) to ensure that the district’s racial composition would “add up correctly,” deviated from the districting practices he otherwise would have followed. . . .

Faced with this body of evidence—showing an announced racial target that subordinated other districting criteria and produced boundaries amplifying divisions between blacks and whites—the District Court did not clearly err in finding that race predominated in drawing District 1. . . .

The more substantial question is whether District 1 can survive the strict scrutiny applied to racial gerrymanders. As noted earlier, we have long assumed that complying with the VRA is a compelling interest. And we have held that race-based districting is narrowly tailored to that objective if a State had “good reasons” for thinking that the Act demanded such steps. . . .

This Court identified, in Thornburg vGingles, three threshold conditions for proving vote dilution under §2 of the VRA. First, a “minority group” must be “sufficiently large and geographically compact to constitute a majority” in some reasonably configured legislative district. Second, the minority group must be “politically cohesive.” And third, a district’s white majority must “vote sufficiently as a bloc” to usually “defeat the minority’s preferred candidate.” Those three showings, we have explained, are needed to establish that “the minority [group] has the potential to elect a representative of its own choice” in a possible district, but that racially polarized voting prevents it from doing so in the district as actually drawn because it is “submerg[ed] in a larger white voting population.” Growe vEmison (1993). If a State has good reason to think that all the “Gingles preconditions” are met, then so too it has good reason to believe that §2 requires drawing a majority-minority district. But if not, then not.

Here, electoral history provided no evidence that a §2 plaintiff could demonstrate the third Gingles prerequisite—effective white bloc-voting. For most of the twenty years prior to the new plan’s adoption, African-Americans had made up less than a majority of District 1’s voters; the district’s BVAP usually hovered between 46% and 48%. Yet throughout those two decades, as the District Court noted, District 1 was “an extraordinarily safe district for African-American preferred candidates.” In the closest election during that period, African-Americans’ candidate of choice received 59% of the total vote; in other years, the share of the vote garnered by those candidates rose to as much as 70%. Those victories (indeed, landslides) occurred because the district’s white population did not “vote sufficiently as a bloc” to thwart black voters’ preference; rather, a meaningful number of white voters joined a politically cohesive black community to elect that group’s favored candidate. . . . When voters act in that way, “[i]t is difficult to see how the majority-bloc-voting requirement could be met”—and hence how §2 liability could be established. So experience gave the State no reason to think that the VRA required it to ramp up District 1’s BVAP. . . .

North Carolina can point to no meaningful legislative inquiry into what it now rightly identifies as the key issue: whether a new, enlarged District 1, created without a focus on race but however else the State would choose, could lead to §2 liability. . . . To have a strong basis in evidence to conclude that §2 demands such race-based steps, the State must carefully evaluate whether a plaintiff could establish the Gingles preconditions—including effective white bloc-voting—in a new district created without those measures. We see nothing in the legislative record that fits that description. . . .

 [T]his Court has made clear that unless each of the three Gingles prerequisites is established, “there neither has been a wrong nor can be a remedy.”. . . 

Accordingly, we uphold the District Court’s conclusion that North Carolina’s use of race as the predominant factor in designing District 1 does not withstand strict scrutiny.

* * *

We now look west to District 12, making its fifth (!) appearance before this Court. This time, the district’s legality turns, and turns solely, on which of two possible reasons predominantly explains its most recent reconfiguration. The plaintiffs contended at trial that the General Assembly chose voters for District 12, as for District 1, because of their race; more particularly, they urged that the Assembly intentionally increased District 12’s BVAP in the name of ensuring preclearance under the VRA’s §5. . . . According to the State’s version of events, Senator Rucho, Representative Lewis, and Dr. Hofeller moved voters in and out of the district as part of a “strictly” political gerrymander, without regard to race. The mapmakers drew their lines, in other words, to “pack” District 12 with Democrats, not African-Americans. After hearing evidence supporting both parties’ accounts, the District Court accepted the plaintiffs’. . . .

[W]e review a district court’s finding as to racial predominance only for clear error, except when the court made a legal mistake. . . . And in deciding which side of that line to come down on, we give singular deference to a trial court’s judgments about the credibility of witnesses. . . .

In light of those principles, we uphold the District Court’s finding of racial predominance respecting District 12. The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment. . . .

District 12 (unlike District 1) was approximately the right size as it was: North Carolina did not—indeed, could not—much change its total population. But by further slimming the district and adding a couple of knobs to its snakelike body (including in Guilford County), the General Assembly incorporated tens of thousands of new voters and pushed out tens of thousands of old ones. And those changes followed racial lines: To be specific, the new District 12 had 35,000 more African-Americans of voting age and 50,000 fewer whites of that age. Those voter exchanges produced a sizable jump in the district’s BVAP, from 43.8% to 50.7%. The Assembly thus turned District 12 (as it did District 1) into a majority-minority district.

As the plaintiffs pointed out at trial, Rucho and Lewis had publicly stated that racial considerations lay behind District 12’s augmented BVAP. In a release issued along with their draft districting plan, the two legislators ascribed that change to the need to achieve preclearance of the plan under §5 of the VRA. . . . Rucho and Lewis wrote: “Because of the presence of Guilford County in the Twelfth District, we have drawn our proposed Twelfth District at a [BVAP] level that is above the percentage of [BVAP] found in the current Twelfth District.” According to the two legislators, that race-based “measure w[ould] ensure preclearance of the plan.” Thus, the District Court found, Rucho’s and Lewis’s own account “evince[d] intentionality” as to District 12’s racial composition: Because of the VRA, they increased the number of African-Americans. . . .

The State’s contrary story—that politics alone drove decisionmaking—came into the trial mostly through Hofeller’s testimony. Hofeller explained that Rucho and Lewis instructed him, first and foremost, to make the map as a whole “more favorable to Republican candidates.” One agreed-on stratagem in that effort was to pack the historically Democratic District 12 with even more Democratic voters, thus leaving surrounding districts more reliably Republican. To that end, Hofeller recounted, he drew District 12’s new boundaries based on political data. . . . Indeed, he claimed, he displayed only this data, and no racial data, on his computer screen while mapping the district. . . .

The District Court, however, disbelieved Hofeller’s asserted indifference to the new district’s racial composition. The court recalled Hofeller’s contrary deposition testimony—his statement (repeated in only slightly different words in his expert report) that Rucho and Lewis “decided” to shift African-American voters into District 12 “in order to” ensure preclearance under §5. And the court explained that even at trial, Hofeller had given testimony that undermined his “blame it on politics” claim. . . . Whether the racial make-up of the county was displayed on his computer screen or just fixed in his head, the court thought, Hofeller’s denial of race-based districting “r[ang] hollow.” . . .

The District Court’s assessment that all this evidence proved racial predominance clears the bar of clear error review. . . . W]e are far from having a “definite and firm conviction” that the District Court made a mistake in concluding from the record before it that racial considerations predominated in District 12’s design.

* * *

The State mounts a final, legal rather than factual, attack on the District Court’s finding of racial predominance. When race and politics are competing explanations of a district’s lines, argues North Carolina, the party challenging the district must introduce a particular kind of circumstantial evidence: “an alternative [map] that achieves the legislature’s political objectives while improving racial balance.” That is true, the State says, irrespective of what other evidence is in the case—so even if the plaintiff offers powerful direct proof that the legislature adopted the map it did for racial reasons. Because the plaintiffs here (as all agree) did not present such a counter-map, North Carolina concludes that they cannot prevail. The dissent echoes that argument.

We have no doubt that an alternative districting plan, of the kind North Carolina describes, can serve as key evidence in a race-versus-politics dispute. One, often highly persuasive way to disprove a State’s contention that politics drove a district’s lines is to show that the legislature had the capacity to accomplish all its partisan goals without moving so many members of a minority group into the district. If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this. Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible, rather than a prohibited, ground.

But they are hardly the only means. Suppose that the plaintiff in a dispute like this one introduced scores of leaked e-mails from state officials instructing their mapmaker to pack as many black voters as possible into a district, or telling him to make sure its BVAP hit 75%. Based on such evidence, a court could find that racial rather than political factors predominated in a district’s design, with or without an alternative map. And so too in cases lacking that kind of smoking gun, as long as the evidence offered satisfies the plaintiff’s burden of proof. . . . Similarly, it does not matter in this case, where the plaintiffs’ introduction of mostly direct and some circumstantial evidence—documents issued in the redistricting process, testimony of government officials, expert analysis of demographic patterns—gave the District Court a sufficient basis, sans any map, to resolve the race-or-politics question.

A plaintiff’s task, in other words, is simply to persuade the trial court—without any special evidentiary prerequisite—that race (not politics) was the “predominant consideration in deciding to place a significant number of voters within or without a particular district.” . . . The Equal Protection Clause prohibits the unjustified drawing of district lines based on race. An alternative map is merely an evidentiary tool to show that such a substantive violation has occurred; neither its presence nor its absence can itself resolve a racial gerrymandering claim.

* * *

Applying a clear error standard, we uphold the District Court’s conclusions that racial considerations predominated in designing both District 1 and District 12. . . . We accordingly affirm the judgment of the District Court.

It is so ordered.


JUSTICE THOMAS, concurring.

I join the opinion of the Court because it correctly applies our precedents under the Constitution and the Voting Rights Act of 1965. . . .

I also think that North Carolina cannot satisfy strict scrutiny based on its efforts to comply with §2 of the VRA. In my view, §2 does not apply to redistricting and therefore cannot justify a racial gerrymander.


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 (2001) (Cromartie II), the Court considered the constitutionality of the version of District 12 that was adopted in 1997. 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. The State responded that its motive was not race but politics. Its objective, the State insisted, was to create a district in which the Democratic candidate would win. Rejecting that explanation, a three-judge court found that the legislature’s predominant motive was racial, specifically to pack African-Americans into District 12. But this Court held that this finding of fact was clearly erroneous.

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 correlated,” 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.”

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.”

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.

Under the Constitution, state legislatures have “the initial power to draw districts for federal elections.” Vieth vJubelirer (2004). 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 vJohnson (1995), “effort[s] to separate voters into different districts on the basis of race” must satisfy the rigors of strict scrutiny. . . .

[At this point in his opinion, Justice Alito engages in a long review of the evidence and testimony presented in the lower court and concludes that there are sufficient grounds to establish that politics, not race, was the driving factor in drawing District 12 boundary lines.]

Reviewing the evidence, . . . 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; the majority ignores that political explanation. Our cases say that “the good faith of a state legislature must be presumed,” Miller; 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.”

The judgment below regarding District 12 should be reversed, and I therefore respectfully dissent.