Towards Proportional Representation?: the Strange Bedfellows of Racial Gerrymandering and Equal Protection in Easley v. Cromartie - Charles Gregory Warren

• Publication year: 2002

Towards Proportional Representation?:

The Strange Bedfellows of Racial

Gerrymandering and Equal Protection in

Easley v. Cromartie

In Easley v. Cromartie,¹ the United States Supreme Court upheld the construction of North Carolina's Twelfth Congressional District, ruling that the use of race as a factor in Congressional redistricting is permissible under the Fourteenth Amendment's Equal Protection Clause so long as race is not the predominant motivating factor in the redistricting.² Interestingly, the Court's rationale in Easley creates an implicit sanction to a state's creation of a functionally race-based, numerical set-aside program in the form of a nearly majority-minority populated congressional district. This reasoning conflicts with the Court's earlier equal protection jurisprudence, in which the Court subjected similar "benign discrimination" programs to strict scrutiny.³ Arguably, the Court's tacit recognition in Easley of the necessary role of race consciousness in American politics portends the creation of a proportional representation right, inverting the traditional "one [person], one vote" individualistic principle of Reynolds v. Simms.⁴

I. Facts

The Easley litigation arose out of the creation of the Twelfth Congressional District, which was one of the two districts drawn by the North Carolina legislature in 1992 to contain a near majority of black voters. The district's shape was highly unconventional, serpentine in appearance, and ran approximately 160 miles north-south. The district split towns and communities according to racial demographic composition and constricted at stretches to widths no wider than that of Interstate 85. Subsequently, five North Carolina residents brought suit against U.S. Attorney General Janet Reno and various state officials in Shaw v. Barr,⁵ disputing the legality of the district's construction and alleging the district constituted a "racial gerrymander" in violation of the Fourteenth Amendment's Equal Protection Clause.⁶ A three-judge panel sitting for the District Court for the Eastern District of North Carolina dismissed the claim, finding the race-conscious redistricting plan did not violate the Fourteenth Amendment Equal Protection Clause because plaintiffs failed to prove the redistricting scheme possessed the requisite discriminatory purpose and effect.⁷

On appeal in Shaw v. Reno (Shaw D,⁸ the United States Supreme Court remanded the case to the district court, holding that if plaintiffs could demonstrate that the redistricting scheme was so irrational on its face that it could only be understood as an effort to segregate voters into separate voting districts because of their race, then they would have a cognizable claim for relief under the Fourteenth Amendment's Equal Protection Clause.⁹ Moreover, the Court asserted that claims alleging racially motivated gerrymandering of districts necessitated "strict scrutiny" analysis under the Fourteenth Amendment.¹⁰ The Court then ordered a trial to determine if North Carolina's race-conscious redistricting was narrowly tailored to achieve a compelling governmental interest.¹¹

On remand, the district court held that while the North Carolina redistricting plan did in fact classify and redistrict voters according to race, the plan nevertheless survived strict scrutiny.¹² Specifically, the district court found the redistricting plan was undertaken pursuant to a compelling state interest, namely, attempted compliance with section 2 of the Voting Rights Act,¹³ and that the plan was narrowly tailored to achieve that interest.¹⁴ Plaintiffs again appealed to the United States Supreme Court in Shaw v. Hunt (Shaw II).¹⁵ The Court again reversed the district court, declaring that the redistricting plan constituted a racial gerrymander, and held the plan failed strict scrutiny because the plan was not narrowly tailored.¹⁶ Specifically, the Court concluded that compliance with the Voting Rights Act did not compel North Carolina's creation of a second majority-minority district. Moreover, the Twelfth District could not reasonably be said to remedy any "vote dilution"¹⁷ violation of the Voting Rights Act because it did not contain a geographically compact population of any race.¹⁸

The current litigation resulting in the United States Supreme Court's 2001 decision in Easley arose in 1997 with North Carolina's second attempt to redraw the Twelfth District's boundaries within constitutional limits. Alleging the North Carolina General Assembly impermissibly utilized race as the "predominant factor"¹⁹ in redistricting in violation of Fourteenth Amendment Equal Protection, plaintiffs once more brought suit in the district court for the Eastern District of North Carolina. At trial, the district court found the boundaries created an unusually shaped district, with counties and cities split so as to include all heavily Democratic-registered, predominantly black voting precincts inside the district, while placing some adjacent heavily Democratic-registered, predominantly white precincts outside of the bounds of the reconfigured Twelfth District.²⁰ The district court relied upon this strategic place- ment of Democratic black voters inside and Democratic white voters outside of the Twelfth District as evidence that the legislature was attempting to maximize the Twelfth District's black voting strength, not its Democratic voting strength. That is, the court found unpersuasive the argument that the legislature was attempting to redistrict so as to ensure a safe "Democratic seat" and, instead, found the catalyst in redistricting was the desire to ensure a safe "black seat."²¹ The distinction between racially and politically motivated redistricting is critical because the Supreme Court has previously held that political gerrymanders are generally constitutionally permissible so long as they do not violate the "one [person], one vote" principle and do not dilute the voting strength of the political majority of the state.²²

Based upon its finding of extreme geographic and racial abnormalities in the construction of the Twelfth District, the district court granted summary judgment to plaintiffs, sustaining the constitutional challenge to the district's validity.²³ On appeal in Hunt v. Cromartie,²⁴ the United States Supreme Court reversed and remanded, finding a genuine issue of material fact existed as to whether the evidence presented at trial was consistent with the constitutionally permissible objective of the creation of a "safe Democratic seat."²⁵ Specifically, the Court was interested in the ramifications of the testimony of the State's expert witness, Dr. David W. Peterson. Dr. Peterson averred that given the high level of correlation between the black population and Democratic voter registration, a legislative effort to create a "safe Democratic seat" is nearly indistinguishable from an effort to construct a majority-minority district resulting in the creation of a "safe black seat."²⁶

On remand the parties engaged in additional discovery and participated in a three-day trial before a three-judge panel of the district court. In its findings of fact, the district court found the legislature had attempted to cure the 1992 district's constitutional defects while also adopting a redistricting plan that would maintain the political balance in the state's congressional delegation.²⁷ Despite North Carolina's attempts to cure the constitutional defects of the Twelfth District, the district court still found the district's serpentine shape and disproportionately large black population (totaling 47% of the district's voting population) indicated that race—-not politics—determined the construction of the Twelfth District.²⁸ Rationalizing its finding on these grounds alone, however, would have been insufficient, inasmuch as the Supreme Court previously remanded while considering identical evidentiary grounds. Therefore, the district court attempted to substantiate its ruling with a new finding on remand: North Carolina drew the Twelfth District's boundary lines so as "to collect precincts with high racial identification rather than political identification."²⁹

The United States Supreme Court granted North Carolina's petition for certiorari to review the district court's determination that the North Carolina General Assembly utilized race as a "predominant factor" in the 1997 redrawing of the Twelfth Congressional District's boundaries.³⁰ The Supreme Court found the district court's findings of the legislature's unconstitutional use of race as the predominant factor in congressional redistricting to be "clear error."³¹ Moreover, the Court held that in cases such as this, in which race correlates highly with voter behavior (95-97% of blacks in North Carolina register and vote Democratic) and majority-minority districts are at issue, plaintiffs must demonstrate that alternative districting plans would have brought about significantly greater racial balance without sacrificing accomplishment of the State's legitimate political objectives.³²

II. Legal Background

The Fifteenth Amendment grants citizens a negative right against governmental encroachment upon the individual's exercise of the elective franchise.³³ Unfortunately, this constitutional prohibition barring racial discrimination as a means for disenfranchisement was not self-enacting. With the lapsing of the Enforcement Act of 1870³⁴ (criminalizing interference with the right to vote), the protections of the Fifteenth Amendment went unenforced in the former Confederate states. Consequently, over the span of the next eighty years, these states implemented facially nondiscriminatory literacy tests, grandfather clauses, and Constitution understanding tests as barriers to black voter registration, resulting in the wholesale preclusion of blacks from registering as voters and the virtual disenfranchisement of blacks in the South.³⁵ Functionally, these supposedly "race neutral" voter qualifications...