Race and politics will once again intersect at the Supreme Court when the Justices hear McCrory v. Harris and Bethune Hill v. Virginia State Board of Elections. Both cases deal with the issue of gerrymandering, and whether certain congressional districts were purposely doctored in a way that is discriminatory toward minorities or makes their vote irrelevant.
Gerrymandering is the process of manipulating the boundaries of an electoral constituency so as to favor one political party or demographic group. Every 10 years, after the census is taken, state legislatures get to redraw the congressional map of their state based on the new population data; some states may have to get rid of a district altogether. This process is called redistricting. Gerrymandering occurs when the state legislature’s new map seems to pack a particular group into a certain district where their voices will only be heard there, or to spread them out so much that they do not have much of a say at all.
This practice has long dominated American politics, starting with the first Congress. Virginia Governor Patrick Henry had the state legislature gerrymander the 5th District so he could pit his enemy James Madison against James Monroe in that House race. Madison ultimately beat Monroe, but it was much closer than if the district had not been touched.
The term itself comes from the Boston Gazette, which published a story on the redistricting plan Massachusetts Governor Elbridge Gerry signed into law in 1812. The reporter noted that one district resembled the shape of a salamander, and thus “gerrymander” was born.
The 14th Amendment, as well as the Voting Rights Act of 1965, help to combat racial bias in gerrymandering. Section 5 of the Voting Rights Act even has a clause that requires some states to have their redistricting plans approved by the Department of Justice before being implemented in an attempt to ensure there is no voter discrimination. This formula in Section 4 that identifies those states, however, was found to be unconstitutional in 2013 in Shelby County v. Holder. This opened the door for states like North Carolina and Virginia to enact election laws without approval by the federal government.
McCrory v. Harris deals with North Carolina congressional districts 1 and 12. These districts are Democratic, but some constituents claim that they are packed with minorities and therefore racially gerrymandered. North Carolina officials, claiming that they were simply following the Voting Rights Act, made majority-minority districts with a 50% minimum of African-American residents. But since African Americans were already being elected to office and given a fair shot at picking the representatives they wanted, it could be seen as minority packing—which is exactly how the North Carolina Supreme Court saw it.Bethune Hill v. Virginia is centered on 12 of Virginia’s state legislative districts. These districts, 12 in total, required a 55% minority population in their districts; like North Carolina, the state justified the requirement as necessary for compliance with the Voting Rights Act. The lower court in this case decided in favor of the state—meaning that, as of now, those districts are still legal.
What both affected parties are really pointing to in these cases is the decision in Shaw v. Reno in 1993. There, the Supreme Court said that, yes, race needs to be considered when redistricting, but that race cannot be the predominant factor.
Both of these cases must also tackle the Voting Rights Act of 1965, which says that minorities should be given a fair chance to elect representatives of their choice, but not to be packed into a district in order to limit their broader influence.
For North Carolina, McCrory v. Harris is just the latest gerrymandering case to reach the nation’s highest court. In 1996, the Supreme Court said in Shaw v. Hunt that North Carolina had made a majority-minority district for race reasons, not party reasons, and the Court ruled it unconstitutional. In 2001, however, the Court ruled in Hunt v. Cromartie that the redrawn district was drawn based on party, not race, and therefore was allowed to remain intact. In many cases, the Court has drawn a fine line: gerrymandering based primarily on party is acceptable, but gerrymandering based primarily on race is not.
With the Court deadlocked right now with only eight Justices, there is a good chance that both of these cases will be 4-4 decisions, although Justice Anthony Kennedy has swung to the left on this issue before. Tackling the question of “race or party” has never been an easy one for the courts, and these two cases are no different.
Chris Calabrese is an intern at the National Constitution Center. He is also a recent graduate of St. Joseph’s University.
