WASHINGTON (CN) - The Supreme Court grappled Monday with whether voting districts in North Carolina and Virginia were gerrymandered for racial or political reasons.
"Well, the question is,” Justice Elena Kagan said this morning, “Is it? Right? I mean, that's the question that the District Court was trying to answer. Is it politics or is it race? If it's politics it's fine; if it's race it's not.”
Arguing on behalf of North Carolina's Gov. Patrick McCrory, attorney Paul Clement said the law puts the onus on plaintiffs rather than legislatures. They need to present alternative maps, Clement said, adding that doing so should be "easy as pie," based on their claims.
"If there's all that direct evidence, gosh, I think the alternative map drawing is going to be a breeze," Clement said.
Kagan disputed this.
"Not so easy," she said, "because we know that race and politics correlate.”
This is especially true in the South, Michael Li, senior counsel for the Brennan Center's Democracy Program, said in an interview after the hearing.
"Even if you do something for political reasons, it often times has a significant racial impact," said Li, whose organization filed an amicus brief on behalf of the plaintiffs in this case.
Li called it “very artificial to have this system to treat them both as though they are very different things."
"Until it's willing to say that politics is out of bounds, the court has to do contortions to figure out whether it's race or politics, and that's because it hasn't decided that politics are out of bounds," Li said.
The cases consolidated before the court this morning for oral argument involve maps in North Carolina and Virginia, drawn after the 2010 census, that packed black voters into a few congressional and state legislative districts to dilute the power of their votes.
Complicating the issue is tension between the Voting Rights Act, which allows states with large minority populations to consider race in redistricting, and Supreme Court precedent, which stipulates that making race the predominant factor is unconstitutional.
The Voting Rights Act is meant to ensure that minority communities are adequately represented by their desired candidates, and Virginia and North Carolina say this was the only intent at play when they redrew legislative boundaries.
Clement, the attorney for North Carolina, said significant evidence of a racial gerrymander is not enough. It is up to the plaintiffs to produce an alternative map to demonstrate that a legislature could accomplish political goals without placing too much emphasis on race.
The North Carolina areas at issue – congressional districts 1 and 12 --- have been extensively litigated and ruled on five times already by the high court.
A state court ruled against the plaintiffs when they challenged the redrawn boundaries of these districts after the 2010 census. Though the North Carolina Supreme Court affirmed, a federal three-judge panel later agreed that the redrawn boundaries constituted a racial gerrymander.
Clement told the court that four of the six judges who reviewed the case - both in the state and federal courts – found that the districts were drawn with political, not racial boundaries.
Those findings should be given their due, Clement said, against the two federal judges who found that the redrawn boundaries constituted racial gerrymanders.
Li, at the Brennan Center, noted that Monday’s hearing was one of a number of partisan gerrymander cases coming down the pike. If the high court takes any of them up, it could also bar political gerrymandering.
The courts have long recognized that excessive partisanship is a problem with redistricting and have struggled to find a formula to solve it, Li said. If the high court prohibits political gerrymandering, it could help neutralize too much political influence in redistricting, he added.
"North Carolina has long sort of been at the epicenter of trying to draw districts that are fair for its growing African American community," Li said. Increased racial polarization has only complicated the issue of trying to distinguishing racial and political gerrymandering.
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