It was starting to look as though the decade would wind down quietly without a blockbuster redistricting case from the U.S. Supreme Court. There have been a couple of key decisions such as the partisan gerrymandering case from Pennsylvania and the Texas mid-decade redistricting case, but neither of those decisions packed a wallop that dramatically changed the rules as we know them now. However, on Monday the Supremes agreed to hear a redistricting case on appeal from the North Carolina State Supreme Court that could lead to a major new chapter in redistricting law. My beloved home state has given us many landmark redistricting cases including Thornburg v. Gingles and Shaw v. Reno, so this case, Bartlett v. Strickland, could extend North Carolina's legacy in redistricting litigation.
The Bartlett case comes from Pender County in southeastern North Carolina--just north of Wilmington. The North Carolina Legislature enacted a State House redistricting plan that partially divided Pender County in order to draw House District 18 with a 39 percent African-American voting age population.
The Legislature said that this district was required by section 2 of the Voting Rights Act and thus necessitated the division of Pender County into two state house districts, even though that violated a state constitutional provision to keep counties whole when possible and when not in contravention of federal law.
The state of North Carolina argued that the black population, if kept whole in one district, could elect a candidate of their choice due to consistent and measurable cross-over voting by white voters, so the district was necessary to comply with section 2 of the federal Voting Rights Act (VRA).
Section 2 of VRA applies to all 50 states, like most federal laws, meaning that any precedent in an eventual opinion in this case could have far reaching effects for all states when redistricting cranks up in a couple of years. Anyway, back to the case at hand...
The North Carolina Supreme Court eventually ruled against the state, holding that established redistricting case law only mandates that a state draw a majority-minority district in compliance with the Voting Rights Act when a minority group is sufficiently large enough to be 50% or more of a single member district. Therefore, the legislature violated the state constitutional mandate to keep Pender County whole in the districting plan. This is a vast oversimplification, so I encourage you to read the decision itself here, and read the chapter of NCSL's redistricting law book on the Voting Rights Act here if you really want detailed background.
More details and a strange twist to the story after the jump.
North Carolina Attorney General Roy Cooper appealed the state high court's ruling to the U.S. Supreme Court. Multiple "friend of the court" briefs were filed asserting that various federal courts are in conflict on the question of whether the Voting Rights Act requires states to draw districts to comply with the Voting Rights Act even if those districts would not be over 50% minority population. These districts are sometimes called coalition, influence or crossover districts. There are subtle distinctions between each of these.
At least four Justices on the Supreme Court agreed with petitioners and granted the request to hear the case. By taking the case, the SCOTUS appears willing to give states clear guidance on this question in advance of the 2010 redistricting cycle. If you go to this page and scroll down to the case titled Bartlett v Strickland, you will find links to various filings asking the Supreme Court to hear the case including a brief filed by Illinois, Louisiana, Maryland, and Ohio as well as a brief from legislators in New York and Ohio.
I can tell by the marked increase in calls and e-mails I've been getting from states over the past few months that redistricting is looming ever closer. The Supreme Court will not hear this case until next term, so a decision is not likely until perhaps as late as the middle of 2009. Bartlett v. Strickland could be the colossal case of this decade and dictate many new rules for 2011 redistricting. There's one thing that you can almost certainly take to the bank--as goes Justice Kennedy, so goes this case. The Court is very likely to be evenly divided with Justice Kennedy being the swing vote. Justice Kennedy holds the fate of redistricting and its practitioners in his hands. Please forgive me for closing this way, but stay tuned.
By the way, this case has one odd footnote. The legislator currently representing North Carolina House District 18 is Representative Thomas Wright. Rep. Wright is in serious trouble with his peers in the North Carolina House because of alleged financial misconduct. The House will meet in an historic special session on Thursday to vote on the expulsion of Rep. Wright from the General Assembly. Rep. Wright could become the first legislator expelled by the North Carolina House since 1880.
I link to most of the documents in the expulsion proceedings here:
http://ncbilldrafting.wordpress.com/2008/03/13/extra-session-march-20-on-wright-discipline/
Posted by: Gerry Cohen | March 20, 2008 at 07:02 AM
At the end of a two-hour special session today, Representative Wright was expelled by a 109-5 vote. Details at
http://ncbilldrafting.wordpress.com/2008/03/20/extra-session-on-wright-expulsion-resolution/
Posted by: Gerry Cohen | March 20, 2008 at 10:20 AM