A TV Ad, Racial Gerrymanders and Racial Quotas
By Michael Kent Curtis
The North Carolina Republican Party chairman is yelling foul over an independent TV ad currently airing in the state. The ad criticizes North Carolina Supreme Court Justice Bob Edmunds for his decision upholding the way the North Carolina legislature used race in legislative districting. Federal courts have now upheld challenges to 28 of the legislature's state house and senate districts and to two congressional districts--because court found the legislature's gerrymandered use of race violated the 14th Amendment's guarantee of Equal Protection of the laws. These are the same districts that Justice Edmunds approved in his opinion for the North Carolina high court.
As summarized by the News and Observer, the ad says Justice Edmunds, a Republican, wrote the decision upholding his party's discrimination. Notably, a 4th U.S. Circuit Court of Appeals decision also struck changes in voting laws in North Carolina, changes that the judges found surgically targeted to disadvantage black voters.
Republican leaders responded to that federal decision with an attack on the federal judges. The response to the anti-Edmunds ad takes a different route: "This racially charged and explosive ad has no place in our state," N.C. GOP Chairman Robin Hayes said in a news release.
In light of Mr. Hayes outrage, it is worth looking at the facts.
After their 2010 victories in North Carolina, Republican legislators enacted a breath-taking gerrymander, one designed to protect and enhance their new legislative and congressional majority for the foreseeable future.
The gerrymander was starkly racial. Republican leaders in the state house and senate announced and enforced two racial quotas (my term, not the legislature's) for redistricting the state's legislative seats. They said that they would consider changes to their plan, but none to their two racial quotas (or "targets").
The legislature's districting czars mandated creating as many as possible black-majority, voting-age population legislative districts (quota 1) and for the state senate and house, having black representatives in the state legislature in proportion to the state's black voting-age population (quota 2). The effect of the quotas was to pack extra black voters into new majority black districts and, as needed, to expel whites.
The defense by Republicans in the legislature was that these racial quotas were justified by the Voting Rights Act or to protect the state against a Voting Rights Act lawsuit. If valid, the Voting Rights Act defense also let the legislature overcome, for state legislative districts, the anti-gerrymander whole county provision of our state constitution.
For their reconstructive surgery, Republican legislators revised legislative districts in areas where, thanks to a multi-racial coalition, candidates preferred by black voters already had been winning by large margins, even though blacks of were not a majority of the voting-age population of the district. Then they applied quota 1 to these districts. The hyper-racial districting wasted black votes and helped disrupt multi-racial coalitions.
A later decision of the U.S. Supreme Court in a case from Alabama strongly indicated that racial districting must be viewed district by district and that rigid numerical targets had to be shown to be needed to protect the equal opportunity of black voters to elect candidates of their choice in that district.
This should be so if only if, in the newly constructed district, racially polarized voting was shown to frustrate an equal opportunity of blacks to elect candidates of their choice. Since in the prior districts in these areas candidates preferred by black voters were typically winning by large margins, that was a stretch.
The first racial quota (50 percent-plus black voting-age population districts) also relocated blacks -- who mostly vote Democratic -- from other districts where they had helped to elect their white Democratic allies. The result was a few more blacks in the legislature, and many fewer white Democrats and even whiter Republican districts. Racial gerrymandering left blacks and the few surviving white Democrats a long-term impotent minority in the legislature.
The second racial quota required that the number of blacks in the state legislature be proportional to the black voting-age population of the state. Pursuing its second racial proportional-representation quota, the Republican majority drew white state Sen. Linda Garrou (D-Forsyth) out of her prior district, although she had been the preferred candidate of black voters. Sen. Robert Rucho (R-Mecklenburg), the senate re-districting czar, admitted that Sen. Garrou would not have been removed from her district if she had been a black incumbent. From the perspective of the racial quota, Sen. Garrou -- though preferred by most black voters in her district -- was a Democrat of the wrong color. The proportional racial quota required a black, not a white Democrat.
The North Carolina Supreme Court, by a divided vote, has (twice) upheld the gerrymander by racial quotas (a word the court avoids) -- the second time after a remand from the U.S. Supreme Court that cited the case from Alabama. The deeply divided North Carolina Supreme Court majority treated the U.S. Supreme Court's Alabama decision as of little importance.
The Voting Rights Act, an act on which the legislature and North Carolina court relied, rejects a requirement of proportionality. The quotas have now been held in violation of the equal protection of the laws by the federal court.
The legislature and the N.C. Supreme Court majority could not easily defend the systematic destruction of multiple, multi-racial coalition districts on the grounds that Section 2 of the Voting Rights Act requires that black voters have an "equal" opportunity to elect their preferred candidates. That's because in the areas of these new racially designed districts, black voters had already been electing their preferred candidates by large majorities in the multi-racial, coalition districts the legislature systematically destroyed. Of course, population shifts required some adjustment of district lines.
So the legislature and the North Carolina high court defended the rigid racial quotas by a different approach -- having destroyed the old apparently Voting Rights Act-compliant districts, the legislature claimed and a slim majority of our North Carolina high court found, that the legislature might need the two numerical quotas to protect against a possibly successful Voting Rights Act lawsuit -- defending by establishing its newly created quota districts.
Sometimes, defenders of racial packing and sorting and voting rules that depress the votes of blacks and poor voters, claim that these methods are OK since they are motivated by permissible political motives, not racial ones. The quotas operate to disrupt a white-black political coalition. But, as the argument goes, black voters are not packed and gerrymandered because they are black, but because they mostly vote Democratic. To target and disadvantage voters of a certain race because of how they vote should still be seen as racial discrimination.
At one time, U.S. Supreme Court precedent seemed to see bans on interracial marriage as permissible -- because, while blacks could not marry whites, whites also could not marry blacks. Finally, the high court saw the discrimination for what it was -- discrimination against interracial marriage and in favor of single-race couples. Systematic attacks on multi-racial political coalitions should fare no better.
Racial quotas and devices (by whatever name), when not justified by any compelling need, are deeply troubling, especially when their obvious effect is isolate blacks, and to diminish their political influence, and systematically to disrupt multi-racial political coalitions.
Michael Kent Curtis teaches constitutional law and constitutional history at Wake Forest University School of Law. He has written two law review articles and several and essays on North Carolina's racial districting. The views expressed are his own.