TABLE OF CONTENTS INTRODUCTION 1838 I. RACE OR PARTY 1843 A. Background 1843 B. Unconstitutional Racial Gerrymandering in Times of Conjoined Polarization 1846 C. Section 2 Vote Dilution Cases in Times of Conjoined Polarization 1856 D. Implications and Critiques 1863 II. RACE AS PARTY 1864 A. The Race as Party Cases 1864 B. Implications and Critiques 1872 III. PARTY ALL THE TIME 1876 A. Party All the Time 1876 B. Implications and Critiques 1880 CONCLUSION 1882 INTRODUCTION
An accidental moment of clarity emerged during Paul Clement's December 2016 oral argument rebuttal in the Supreme Court case of Cooper v. Harris. (1) Harris was the latest challenge to two North Carolina congressional districts that the Court had repeatedly examined since its 1993 decision in Shaw v. Reno. (2) Shaw established the cause of action for "an unconstitutional racial gerrymander, (''3) and Harris considered whether the North Carolina legislature engaged in such gerrymandering by making race the "predominant factor" in redistricting North Carolina's Congressional District 12, or whether its actions instead could be explained as a constitutionally permissible attempt to gain partisan advantage. (4)
Clement was arguing that the legislature's choice to shift 75,000 African American voters, many living in Guilford County, from neighboring districts into District 12 was not evidence of the legislature impermissibly making race the predominant districting factor, but simply evidence of partisanship:
First of all, it's all well and good to say they pulled in 75,000 African-Americans or hauled in all these African-Americans. They were all Democrats, as well. And that's why, even there, if you had an alternative map that showed, oh, there's a different way to do Guilford County, and... bring in Democrats and not bring in African-Americans, then you'd have something. But just the fact that they 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, because everybody agrees there's about a 90 percent correlation between race and partisan identity. (5) Clement's point was, of course, correct--the most reliable Democratic voters by far in North Carolina are African American (6)--but it subversively undermined not only his argument but also the entire exercise in which the Court engaged. The idea that in southern states, such as North Carolina, it is possible to separate considerations of race from those of party is ludicrous. Not only do white and African American voters in North Carolina tend to prefer different candidates, white voters tend to prefer Republicans and, on an even greater basis, African American voters tend to prefer Democrats. (7) For example, in the final Elon Poll of North Carolina voters before the 2016 presidential election, an astonishing 100 percent of African American voters supported Hillary Clinton, while 67 percent of white voters supported Donald Trump. (8)
Throughout the United States, but especially in the modern American South, the situation is one of "conjoined polarization," as Bruce Cain and Emily Zhang label it: "The more consistent alignment of race, party, and ideology since 1965." (9) As they summarize the social science literature on the phenomenon:
American politics has become decidedly more polarized in the last two decades. By political polarization, we mean the persistent and growing ideological gap between adherents of the two major political parties.... Democrats and Republicans today can reliably be expected to hold certain policy and ideological positions. Two decades ago, partisan labels were much less predictive of the views that an individual held.... Polarization along partisan lines also has a racial dimension. The campaign, election, and reelection of President Obama spawned significant academic research on the parallel growth of racial and partisan polarization. Such racial polarization is evident in President Obama's election returns: in the 2008 election, he lost the white vote by 20%, but won with a nonwhite margin of 62%. The roots of racial polarization run much deeper. The civil rights movement divided the population on racial issues and caused party attachments to form along racial lines. Such racial polarization has not only caused African-Americans and other minorities to more closely associate with the Democratic Party, it has also had an effect on whites. Political scientists have found a notable increase in the effects of racial resentment on white partisanship from 1988 to 2000.... ... Racial sorting and party sorting trends have been closely intertwined. Civil rights policies gave socially conservative white Democrats reason to defect to the Republican Party. Immigration policies also enabled the nonwhite and non-European population to grow and eventually enter a coalition with liberal whites. At the same time, both parties became more ideologically consistent, with more within-party conformity in social and economic policy. This undercut the ideological heterogeneity that in the immediate post World War II era had limited the polarization of activists, donors, and representatives in both parties. The Democratic and Republican parties became more ideologically consistent and racially distinctive. (10) Although conjoined polarization emerged most strongly in the last two decades, legal doctrine has not yet found a comfortable way to deal with it, as the Harris case illustrates. (11) In this Article, I consider three ways legal doctrine can and does try to approach conjoined polarization, and the problems with each approach. My own preference is for the third approach, but it too has drawbacks.
Race or party is the first approach to conjoined polarization. (12) In this approach, a court's task is to decide whether a case is "really" about race rather than party, with certain legal consequences flowing from the determination. (13) Some of the racial gerrymandering cases fit into this category. (14) Building on an early racial gerrymandering case, Easley v. Cromartie (Cromartie II), the courts' task has been to decide whether race or party predominated in drawing district lines. (15) If race predominated, the lines are impermissible unless the state had a compelling reason to rely on race, but if partisanship predominated, the districts are allowed. (16) Beneath the surface, this racial gerrymandering doctrine has allowed for partisan and political fights over redistricting in the guise of discussing racial separation. (17) The race or party divide also appears in some Voting Rights Act section 2 cases; courts looking at discriminatory effects of voting rules sometimes have considered whether minority voters faced less opportunity to participate in the political process because of their race (or ethnicity), or for partisan reasons. (18) In jurisdictions where conjoined polarization is prevalent, a race or party analysis can be nonsensical and lead to arbitrary results. It also may undermine enforcement of the Voting Rights Act.
An alternative approach is to treat race as a proxy for party under certain conditions. (19) The United States Court of Appeals for the Fourth Circuit used this approach in a recent case involving the constitutionality of a major North Carolina voting law, which imposed a strict voter identification requirement and made cutbacks to other voting rules. (20) The court, in striking the State's law as a violation of section 2 of the Voting Rights Act, held that the state legislature (the same one that drew the lines at issue in Harris) acted with a racially discriminatory intent. (21) The court reached this conclusion despite finding no evidence of racial animus. (22) The court wrote that legislators relied upon racial data to achieve partisan ends in designing this law, and that this reliance made party discrimination a form of racial discrimination. (23)
The Supreme Court's most recent racial gerrymandering case, Cooper v. Harris, also moved the Court significantly in the direction of race as party, especially when there was reliance on racial data for partisan ends. (24) This approach, while more realistic about conjoined polarization than race or party, raises a host of new questions, such as whether Republican legislatures in areas of conjoined polarization could ever roll back earlier easing of voting laws enacted by Democratic legislatures and administrators without risking a court holding that the legislature engaged in intentional race discrimination. It also means that a law that is illegal in North Carolina may be legal in Wisconsin, even if motivated by the same partisan intent, because of the difference in racial makeup between the two states. (25)
A third approach to conjoined polarization, suggested in footnotes in the Fourth Circuit case, (26) but advanced more fully by some scholars, including Sam Issacharoff and me, seeks to de-emphasize a racial focus in these lawsuits. (27) Under the party all the time approach, courts shift toward policing partisan election laws more directly. Race still matters in areas with conjoined polarization, but a legal focus on the racial aspects of these disputes can make it even more difficult to adjudicate these delicate disputes. (28) A move toward party all the time would prevent states from raising partisanship as a defense to discrimination against minority voters. (29) Party all the time has two main drawbacks. First, it can obscure situations in which race is more salient than party and needs direct redress from the courts. (30) Second, the approach injects courts further into the political thicket, potentially leading to more partisanship in judicial decision-making and lack of a principled stopping point for judicial policing. (31)
The problem of conjoined polarization is real, and the three alternatives demonstrate that it is hard to come up with the right set of legal doctrines to properly...