The Southern Coalition for Social Justice represents three African-American voters who would lose their voice in the North Carolina General Assembly if the Supreme Court rules against the State of North Carolina in Bartlett v. Strickland. This case involves the interaction between the federal Voting Rights Act and the state constitution’s whole county provision. On June 16, 2008, SCSJ filed an amicus brief on their behalf, in the U.S. Supreme Court, which highlights the history of Pender and New Hanover Counties, including intentional discrimination against black voters. Joining us on the brief were the National NAACP and the ACLU.
Pender and New Hanover Counties were originally a single county, divided into two counties as part of an explicit and intentional plan to dilute the voting strength of newly enfranchised black voters in 1875. Since the state originally created two counties to divide an effective black voting population, and now wants to allow that population to remain united in a coalitional district for legislative elections, the district should be protected by the Voting Rights Act.
The whole county provisions of the North Carolina Constitution should not be permitted to bar the state’s use of coalitional districts to provide its long-excluded minority voters with an equal opportunity to elect legislators of their choice. The whole county provisions themselves are an aspect of the State’s long history of racial discrimination impairing minority citizens’ right to vote and elect their preferred candidates to office. Without a substantial number of coalitional districts, North Carolina would soon revert to having a virtually all-white legislature.
The Supreme Court has expressly declined to rule on this issue in the past, most recently in Lulac v. Perry, the Texas Congressional redistricting case. Numerous circuit courts have addressed the issue and are split. The First Circuit has ruled that a Section 2 claim may be brought in circumstances where the black voting age population is less than 50% but still elects a candidate of choice, while the 4th, and 5th circuits have expressly ruled that Section 2 contains a bright line 50% requirement even though it is nowhere in the language of the Voting Rights Act itself. The 2nd, 9th, 10th and 11th circuits have waffled or ruled only in dicta. The New Jersey State Supreme Court has held that a less than 50% VAP district satisfies Section 2 of the Voting Rights Act.
In August 2007, the North Carolina Supreme Court ruled that a state legislative district, House District 18, which had elected a candidate of choice of black voters for many years, but was only 39.36% black in voting age population, must be redrawn because it violates the State Constitution’s whole county requirement. Pender County v. Bartlett, 649 S.E.2d 364 (NC 2007). The State argued, and the lower court had held, that the District was required in order to comply with Section 2 of the Voting Rights Act, but the NC Supreme Court ruled that Section 2 requires that a district be 50% black in order to be protected. It is not possible to draw a geographically compact district in that region of the state that is 50% black in voting age population.
Twenty Congressional districts, and many more state legislative districts, that elect candidates of choice of black voters are less than 50% black in voting age population. Many of these districts are in the South where all of the other factors necessary to demonstrate a violation of the Voting Rights Act totality of the circumstances test are present. The current rule will mean that following the 2010 census, legislatures can dismantle these less than 50% VAP districts that have elected candidates of choice of black voters without fear of being sued under Section 2 of the Voting Rights Act.
The only issue in this case is whether Section 2 of the Voting Rights Act has a 50% VAP threshold requirement. There are no issues of political gerrymandering or other claims to cloud the arguments or give the Court alternative grounds to dispose of the case. Review is being sought by the State of North Carolina, not by individual plaintiffs, and not by partisan political parties, which will put the claims in a different posture for the Court. This is a state wanting to comply with the Voting Rights Act by recognizing minority voting strength where possible. The record below is full of evidence of all the other factors relevant to a Section 2 violation, indeed, the plaintiffs conceded that all other Section 2 factors had been met, including the presence of racially polarized voting and the history of discrimination against black voters. This is the last chance for the Court to consider this issue before the 2010 round of redistricting.
Three Justices (Souter, Ginsburg, and Stevens) have recently, and powerfully, rejected the “50% Rule” that the North Carolina Supreme Court adopted in Pender County. The U.S. Supreme Court has passed on the issue five times, assuming (without deciding) that the 50% Rule misinterprets Section 2 of the Voting Rights Act (in Gingles, Growe, Voinovich, De Grandy, and LULAC). This case does not present the same factual problems as the Fort Worth district in LULAC, which was represented by an Anglo congressman who had never faced an African-American Democratic challenger, because here the incumbent is an African-American representative preferred by African-American voters and has fended off both Republican challengers in the general elections and a white Democratic challenger in the primary. In LULAC, Justice Kennedy was notably careful not to endorse the 50% Rule; and that was a case where he also sided with Latino Section 2 plaintiffs while criticizing the State of Texas for playing games by creating a literally majority-Latino but clearly ineffective “Latino” district.
Resources
Bartlett v. Strickland Amicus Brief signed onto by SCSJ
Updates
On March 17, 2008 the Supreme Court decided to hear this issue: “Whether a racial minority group that constitutes less than 50% of a proposed district’s population can state a vote dilution claim under Sectionn 2 of the Voting Rights Act, 42 U.S.C. § 1973” The issue arises in the case of Bartlett v. Strickland, decided by the North Carolina Supreme Court in August, 2007.