Bartlett v. Strickland

This will be one of the most closely-watched cases of the new term. It relates to the difficult issue of electoral district boundaries in a Southern State (NC) where boundaries were originally drawn to dilute the potential African-American voting population. The legal issue is whether minority voters who constitute less than 50% of the voters in a proposed district can claim their votes will be diluted under sec. 2 of the Voting Rights Act of 1965. In order to make this clear, we need to talk about counties and voting in two NC Counties: Pender (map here) and New Hanover (map here).

Facts of the Case

The crucial facts to recognize in this case are: (1) that District 18 of the NC House of Representatives consists of portions of two adjoining counties in SE North Carolina, Pender and New Hanover Counties, (2) that the NC Constitution requires legislative districts to be composed of entire counties, but (3) the State of NC has, since shortly after the Voting Rights Act of 1965 was passed, assumed that sec. 2 of that act requires a smaller district, carved from parts of two counties, so as to give voice to the large minority (about 39%) of African-American voters in that district.

Since 1992 voters in District 18 have elected an African-American to the NC General Assembly ("GA"). Though African-Americans comprise less than 50% of the total population of current District 18, they comprise 54% of the registered Democratic voters of the district. The winner of the Democratic primary in the district has consistently won the general election. Registered Democrats comprise 59% of the total voters in District 18.

House and Senate districts were redrawn by the General Assembly in 2003. It concluded it was necessary to cross county lines again in forming House District 18 so as not to dilute the voting rights of African-Americans in violation of sec. 2 of the VRA of 1965. To draw such a district the NC GA made three districts out of the two county area. If the GA were required to minimize the crossing of county lines (i.e., to keep the counties "whole" as would be necessary to comply with the one-person, one-vote requirement), the maximum African-American population that could be obtained within House District 18 would almost certainly lead to a situation where no African-American candidate would win election.

The Legal Action in this Case

In May 2004 Pender County and its commissioners brought an action to challenge the 2003 GA's redistricting plan. Specifically the plaintiffs argued that District 18 violated the "whole county" provision of the NC Constitution (art II sec. 5(3); no county shall be divided in forming a state house district). In its answer, the State argued that it was necessary to cross county lines in order to comply with sec. 2 of the VRA. A three-judge panel of the Superior Court unanimously supported the State's argument.

In order for a plaintiff successfully to bring a sec. 2 claim, it must show: (1) the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) the minority group is "politically cohesive," and (3) the "white majority votes sufficiently as a bloc to enable it...usually to defeat the minority's preferred candidate," Thornburg v Gingles, 478 US 30, 50-51 (1986). The argument here was that a vote dilution claim may be brought under Sec. 2 only if a minority exceeds 50% of the population.

The Superior Court judges disagreed. They held that the first Gingles prong "depends on the political realities extant in the particular district in question, not just the raw numbers of black voters present in the general population of the district." The issue is not actual but de facto majority.

The NC Supreme Court reversed the three-judge panel. It held that the only issue before it was whether the first Gingles precondition requires that the minority group be greater than 50% to be protected by Section 2. Because there was not a 50% African-American population, Sec. 2 of the VRA did not requre that House District 18 be drawn so as not to dilute the vote of African-Americans in these counties. Then, since the NC Constitution had a provision requiring the division of districts by county lines, or close enough to ensure the one-person, one-vote rule, the GA had to draw boundaries that were more so divided.

Conclusion

This may be the last opportunity the Court has before 2010 redistricting to make clear what is meant by Sec. 2 of the VRA of 1965. Though the text seems to be quite general (indeed, it is framed on the 15th Amendment; the original wording was: "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." A 1982 amendment added the notion that discriminatory intent didn't have to be shown in order to bring a case under this section), it is the one on which this case hinges. An amicus brief argues that if the case is resolved against the State, then not only state legislatures in the South, but the US Congress, will suffer a considerable diminution in African-American representatives in a future Congress. Such is the difficulty history of race that still dogs and bedevils us...

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