Every 10 years, after the census is complete, legislators in statehouses across the country embark on a time-honored tradition: remapping the boundaries of their states’ voting districts, usually to the benefit of the people doing the remapping. Gerrymandering, the practice of painstakingly engineering districts to bestow an advantage on the politicians in control of the process, has been baked into the American political process since the 18th century — and legal challenges to the weird-looking maps that result have their own long history, too. But not all gerrymanders are created equal, at least from a legal perspective. On Monday, the Supreme Court will hear arguments in two gerrymandering cases, in which the plaintiffs claim that after the 2010 census, Republican legislators in North Carolina and both parties in Virginia deliberately packed black voters into a small number of congressional and state legislative districts. The plaintiffs in the two cases, McCrory v. Harris (North Carolina) and Bethune-Hill v. Virginia State Board of Elections (Virginia), claim that by concentrating black voters in a few districts in an effort to protect their majorities, legislators unfairly diluted black voters’ influence. The legislators, on the other hand, say they are merely complying with the Voting Rights Act, which requires states to create districts where minority voters can select their preferred candidate. The question at the heart of these cases is a political riddle: How much mandated racial gerrymandering is too much racial gerrymandering?
In 2011, Republican legislators in North Carolina increased the percentage of black voters in the two congressional districts designed to comply with the Voting Rights Act to just above 50 percent. Both parties in Virginia increased the percentage of black voters needed for 12 state legislative districts to at least 55 percent. Nicholas Stephanopoulos, an assistant professor at the University of Chicago Law School, says that from a legal perspective, North Carolina and Virginia made a mistake when they created mechanical quotas for these districts. “The states are saying, ‘The Voting Rights Act made us do it,’ but the Supreme Court has said in the past that these kinds of crude mechanisms aren’t required,” he said. But in its decision, the Supreme Court could help state legislators struggling to draw lines that comply with the Voting Rights Act without running afoul of the Constitution.
“It’s very hard to come up with a magic number that satisfies the statute and the Constitution,” said Nathaniel Persily, an election law expert and professor at Stanford Law School. The Supreme Court has ruled that in geographically compact places with large minority populations and high levels of racial polarization in voting, legislators must draw districts that ensure these groups are able to elect candidates to represent their interests. But districts that are drawn only with race in mind can also violate the 14th Amendment’s equal protection clause.
Courts have been wrangling with the states for years about the appropriate ways to draw these boundaries. Partisan gerrymandering has largely been ruled acceptable, with the notable exception of a federal court ruling in Wisconsin in November. That’s left racial gerrymandering as the battleground.