Excerpted From: Gene R. Nichol, The Impossibility of Separating Race and Politics in a White People's Party, 1 North Carolina Civil Rights Law Review 69 (Spring, 2021) (141 Footnotes) (Full Document)


GeneRNicholNorth Carolina has been ground zero for much of the United States Supreme Court's redistricting work. Thornburg v. Gingles, a 1986 challenge to various North Carolina state electoral districts, famously determined when the Voting Rights Act requires a majority-minority district to prevent vote dilution. v. Reno, the high court's landmark 1993 constitutional ruling, also originated in North Carolina. Shaw and its successor Shaw II (1996) held that a state legislature's use of race as “the predominant factor” in drawing an electoral district violates the Equal Protection clause--even, oddly, if no vote dilution occurs. v. Cromartie and Easley v. Cromartie, decided several years later, again examined Tar Heel districts as the Court further outlined its unfolding and controversial standards for reviewing race-based discrimination claims. More recently, Cooper v. Harris sought to synthesize earlier Voting Rights Act rulings with the now more substantially honed constitutional standards announced in Shaw v. Reno. Cooper made clear that North Carolina legislators could neither use the purported standards of the Voting Rights Act nor alleged assertions of partisan motivation to draw lines “predominantly” employing “the use of race” to set electoral boundaries. And most notably, in Rucho v. Common Cause, the United States Supreme Court concluded in 2019:

Partisan gerrymandering claims present political questions beyond the reach of the federal courts ... federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.

Partisan gerrymandering, Chief Justice Roberts also concluded for the Rucho majority, should not be equated with presumptively illegitimate racial line drawing. A “permissible intent--securing partisan advantage--does not become constitutionally impermissible, like racial discrimination, when that permissible intent ‘predominates.”’ too, was a North Carolina venture. The state has been busy. Even if unhelpful.

North Carolina has, then, provided the factual fodder for the development of much of modern statutory and constitutional gerrymandering jurisprudence. It has also, apparently, often operated at the purported axis between racial and political claims. It has occupied the landscape inhabited by both enthusiastically embraced racial gerrymandering actions and judicially rejected political gerrymandering suits. The repeated, decades-long undertakings of the North Carolina General Assembly have, surely, helped convince the federal justices that the consequence-laden distinction between political and racial work is not only defining, but ascertainable. The distinction marks the boundary, it is claimed, between legitimate--even essential--constitutionally derived judicial review and devastating, usurping “government by judiciary.”

There is much to quibble with, or worse, in this account--the ready acceptance of racial gerrymandering cases under the civil war amendments, on the one hand, and the allegedly high-minded repudiation of politically driven bias suits on the other. But even if one accepts the proffered theoretical distinctions between political and racial gerrymanders, North Carolina, again, on the ground, presents conditions and circumstance that mock such theoretical demarcations. Political life in the Tar Heel State laughs robustly when the Chief Justice of the United States explains the boundaries of appropriate and, perhaps, genteel judicial intervention--much like North Carolina legislators celebrated gleefully, and then acted to aggressively discriminate against black voters, when John Roberts proclaimed that “the south has changed” in the Shelby County case, as the Court gutted the Voting Rights Act.

In this essay, I question what the line between racial and political gerrymandering can conceivably look like when a state is effectively and unashamedly governed by a White people's party. What judicial deference is, or ought be, assured, when Republican caucuses repair to their closed-door deliberations, with no person of color present, despite almost a quarter of the state population being Black, and intentionally and repeatedly pass statutes that court after reviewing court determines burden, penalize, and restrict the electoral, participatory, adjudicatory and dignitary rights of African- Americans? Are the political feints, dodges, and maneuvers of a White person's party racial or merely partisan? A century and a half after the passage of the Civil War Amendments, should a federal court deem the strategic political tools of a White people's caucus beyond the reach, or interest, of constitutional law? Is constitutional law, yet again, to be rendered a meaningless and--given the stakes--vile façade? Ultimately, Rucho may make sense, somewhere. That's possible. But in North Carolina, from whence it arises, the decision is grotesque. No one here could honestly conclude that our legislative decisions separate politics and race. Rucho becomes, therefore, merely an exquisite cover for racism. Yet again.

[. . .]

No doubt Common Cause v. Lewis is a direct political gerrymandering decision--saying, explicitly, that what the United States Supreme Court taught, enthusiastically, for seven decades, to be the demands of the equal protection clause in population and racial gerrymandering cases does not mysteriously disappear in partisanship cases. I'm convinced that no small part of the impetus for such a determination for judges actually witnessing political life in North Carolina was that concluding that the actions of an all-White legislative assembly, protecting its continuing efforts to carry forward an intensely racialized substantive legislative agenda, had little to do with race discrimination seemed too absurd. Simply a bridge too far. It might provide exquisite cover for Chief Justice Roberts and his Rucho colleagues--cover well and intentionally wrought. On race matters, after all, they seem to delight in exalting form over substance. On the ground in North Carolina, though, no one believes it. No one.

Boyd Tinsley Distinguished Professor, University of North Carolina at Chapel Hill.