Cooper v. Harris
Reference: 15-1262
Issue: Voting rights Legislative redistricting
Term: 2016
Important Dates
Argued: December 5, 2016 Decided: May 22, 2017
Outcome
United States District Court for the Middle District of North Carolina affirmed
Vote
8-0 to affirm re: CD-1 5-3 to affirm re: CD-12
Majority
For CD-1: Chief Justice John G. Roberts • Anthony Kennedy • Clarence Thomas • Ruth Bader Ginsburg • Stephen Breyer • Samuel Alito • Sonia Sotomayor • Elena Kagan For CD-12: Thomas • Ginsburg • Breyer • Sotomayor • Kagan
Concurring
Thomas (as to CD-1 and CD-12) Roberts (as to CD-1), Kennedy (as to CD-1), Alito (as to CD-1)
Dissenting
Roberts (as to CD-12), Kennedy (as to CD-12), Alito (as to CD-12)

Cooper v. Harris is a case argued during the October 2016 term of the U.S. Supreme Court. Argument in the case was held on December 5, 2016. The case came to the court after the court noted probable jurisdiction. Under 28 U.S.C. §2284, challenges to the constitutionality of congressional districts are heard by three-judge district courts, with a right of direct appeal to the Supreme Court of the United States. The judgment under review was from the United States District Court for the Middle District of North Carolina.

On May 22, 2017, in an opinion by Justice Elena Kagan, the court affirmed the judgment of the Middle District of North Carolina that race unconstitutionally influenced the General Assembly of North Carolina's drawing of the geographic boundaries of both North Carolina's 1st Congressional District (CD-1) and North Carolina's 12th Congressional District (CD-12), in violation of the Equal Protection Clause and provisions of the Voting Rights Act.

The court unanimously affirmed the Middle District's judgment as to CD-1. Five justices — Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — affirmed the judgment of the Middle District as to CD-12.

Justice Thomas wrote a concurring opinion for himself in the case.

Justice Samuel Alito authored an opinion concurring in the judgment in part (as to CD-1) and dissenting in part (as to CD-12) which was joined by Chief Justice John G. Roberts and Justice Anthony Kennedy.

In brief: On February 5, 2016, a three-judge panel of the United States District Court for the Middle District of North Carolina ruled that two of the state's 13 congressional districts, District 1 and District 12, constituted illegal racial gerrymanders in violation of the Voting Rights Act. The court determined that state lawmakers had placed disproportionately large numbers of black voters in these two districts, thereby diluting the impact of their votes. North Carolina Gov. Pat McCrory (R-N.C.) and the North Carolina State Board of Elections chellenged the district court's decision. Oral argument in the case was held on December 5, 2016. Gov. Roy Cooper (D-N.C.) became the named petitioner, ex officio, upon being sworn in as governor of North Carolina in 2017.

You can review the Middle District of North Carolina's opinion here.^[1]

Click on the tabs below to learn more about this Supreme Court case.

Case

Background

See also: Redistricting in North Carolina

Sometime after the 2010 census, North Carolina set out to draw a legislative boundary map for its Congressional delegation to the U.S. House of Representatives. A plan was subsequently approved by the General Assembly of North Carolina and the governor, Pat McCrory (R-N.C.) On November 3, 2011, opponents of the congressional district map approved by the state legislature filed suit.^[2]

A trial court rejected the challenge on July 8, 2013. The plaintiffs appealed the decision to the North Carolina Supreme Court. On December 19, 2014, the court upheld the trial court's decision rejecting the challenge. The plaintiffs appealed the decision to the United States Supreme Court, which ordered the state supreme court to reconsider its earlier ruling. In March 2015, the high court ruled similarly in Alabama Legislative Black Caucus v. Alabama.^[2][4]

United States Supreme Court

Senator Bob Rucho (R), a named defendant in the suit, said, "Today's procedural ruling is not unexpected, and we are confident that our state Supreme Court will once again arrive at the same result and the U.S. Supreme Court will affirm its decision." Margaret Dickson, one of the plaintiffs and a former state House member, said, "We have always known that the current maps were unconstitutional and are gratified that the Supreme Court of the United States has now set in motion a way forward for final disposition of this long-running and wrongly-decided case."^[2][4]

On May 18, 2015, the North Carolina Supreme Court expedited the case, ordering that all briefs be submitted by July 27, 2015. Oral arguments took place on August 31, 2015. On December 18, 2015, the state supreme court once again affirmed the trial court's decision.^[5][6]

On February 5, 2016, a three-judge panel of the United States District Court for the Middle District of North Carolina ruled that two of the state's 13 congressional districts, District 1 and District 12, had been subject to an illegal racial gerrymander. The court determined that state lawmakers had placed disproportionately large numbers of black voters in these two districts, thereby diluting the impact of their votes. The court ordered state lawmakers to draft a new map within two weeks of the ruling. The state's primary was scheduled to proceed as planned on March 15. At the time of the ruling, the candidate filing deadline had already passed, and over 9,860 absentee ballots had been requested for the primary.^[7][8]

The ruling was applauded by Rev. William Barber, president of North Carolina's NAACP chapter. Barber said, "This ruling by all three judges is a vindication of our challenge to the General Assembly of North Carolina writing racially biased ‘apartheid’ voting districts to disenfranchise the power of the African-American vote." On February 9, 2016, state officials petitioned the United States Supreme Court for a stay of the district court's ruling:^[7][9]

United States Supreme Court Chief Justice John Roberts asked the original map's challengers to file a response to the request for a stay by February 16, 2016. On February 19, 2016, the court denied the request for a stay.^[10][11][12]

The congressional district map approved by the General Assembly of North Carolina in February 2016
Click the image to enlarge.

On February 18, 2016, the North Carolina State Legislature convened a special session to redraw the state's congressional district map. The map placed two incumbents, George Holding (R-13) and David Price (D-4), within the same district. Republican Rep. David Lewis (R-53), referring to District 12, said, "The district should not be drawn with race as a consideration. The committee adopted the criteria yesterday that made clear what would be used in the drawing of the maps and that was what was used. Race was not a consideration in the drawing of these maps." Price criticized the new map, saying, "The new districts are no more legitimate than the old. The fact that Republicans decided to maintain the current partisan split of seats before they began drawing these new maps demonstrates that they did not set out to ensure fair representation."^[13]

On February 19, 2016, both chambers of the state legislature approved a bill delaying North Carolina's congressional primary to June 7, 2016; primaries for all other offices were still scheduled to take place on March 15. The new congressional map passed the House on the same day; it passed the Senate on February 19, 2016, becoming law without the governor's signature.^[12][14][15]

On June 27, 2016, the United States Supreme Court announced that it would hear McCrory v. Harris, the state's appeal of the district court's decision (even though the court had earlier declined to stay the district court's decision).^[16][17]

Petitioner's challenge

McCrory et al. challenged the holding of the United States District Court for the Middle District of North Carolina that its 1st and 12th Congressional districts as drawn represent unconstitutional racial gerrymanders. Gov. Roy Cooper (D-N.C.) became the named petitioner, ex officio, upon being sworn in as governor of North Carolina in 2017.

Jurisdiction noted

On June 27, 2016, the Supreme Court of the United States noted probable jurisdiction over a decision of the United States District Court for the Middle District of North Carolina. The Supreme Court will review several questions when the court hears oral argument. Oral argument was held on December 5, 2016. Gov. Roy Cooper (D-N.C.) became the named petitioner, ex officio, upon being sworn in as governor of North Carolina in 2017.

Arguments

Questions presented

Audio

• Audio of oral argument:^[19]
  

Transcript

• Transcript of oral argument:^[20]

Outcome

Decision

Justice Elena Kagan delivered the opinion of the court. The court affirmed the judgment of the Middle District of North Carolina that race unconstitutionally influenced the General Assembly of North Carolina's drawing of the geographic boundaries of both North Carolina's 1st Congressional District (CD-1) and North Carolina's 12th Congressional District (CD-12), in violation of the Equal Protection Clause and provisions of the Voting Rights Act.

The court unanimously affirmed the Middle District's judgment as to CD-1. Five justices — Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — affirmed the judgment of the Middle District as to CD-12.

Justice Thomas wrote a concurring opinion for himself in the case.

Justice Samuel Alito authored an opinion concurring in the judgment in part (as to CD-1) and dissenting in part (as to CD-12) which was joined by Chief Justice John G. Roberts and Justice Anthony Kennedy.^[21]

Opinion

Standards for review

In her opinion for the court, Justice Elena Kagan began with an assessment of the appropriate standards of review used in cases alleging racial gerrymandering in legislative districting plans. The excerpt provided below omits in-line citations of cases cited by Justice Kagan for the benefit of the reader.^[21]

State court judgment

After a factual and procedural review of the cases below, Justice Kagan addressed an argument raised by North Carolina that the North Carolina Supreme Court's decision upholding the legality of the district composition and boundaries should preclude federal courts from adjudicating the case or, at minimum, to conduct a more exacting inquiry of the district court's factual findings as opposed to affording the district court the traditional deference that the U.S. Supreme Court gives. Justice Kagan rejected both arguments, holding that the court was to review only the plausibility of the district court's account. In her words, "the very premise of clear error review is that there are often 'two permissible'— because two 'plausible'—'views of the evidence.' ... Even assuming the state court’s findings capture one such view, the District Court’s assessment may yet represent another. And the permissibility of the District Court’s account is the only question before us."^[21]

North Carolina's 1st Congressional District

Based on the two-part analysis highlighted above, the court identified that race predominated in the General Assembly of North Carolina's drawing of North Carolina's 1st Congressional District (CD-1). Because of this finding, the court subjected the legislature's rationale for the district's construction to a strict scrutiny analysis. That standard requires a government to (a) demonstrate a compelling interest for an action and (b) government's means of advancing that interest must be narrowly tailored in to advance the interest through the least restrictive means possible. Previously, the U.S. Supreme Court had held that compliance with the Voting Rights Act (Act) was a compelling interest. The court also previously held that race-based districting plans could be narrowly tailored to achieve that interest if a state had good reasons to believe that the Act required race-based construction of legislative districts in order for a state to comply with the Act.

North Carolina asserted that the construction of CD-1 was necessary in order to avoid illegal vote dilution, which is prohibited under Section 2 of the Act. The U.S. Supreme Court held in Thornburg v. Gingles that three threshold conditions exist in order to prove vote dilution under Section 2:

• 1. A minority group must be sufficiently large and geographically compact such that the group constitutes a majority of voters in a reasonably configured legislative district.
  
• 2. The minority group must be politically cohesive.
  
• 3. "A district's white majority must 'vote [] sufficiently as a bloc' to usually 'defeat the minority's preferred candidate.'"
  

As Justice Kagan noted, "those three showings, we have explained, are needed to establish that the minority [group] has the potential to elect a representative of its own choice' in a possible district, but that racially polarized voting prevents it from doing so in the district as actually drawn because it is 'submerg[ed] in a larger white voting population.' ... If a State has good reason to think that all the 'Gingles preconditions' are met, then so too it has good reason to believe that §2 requires drawing a majority-minority district. ... But if not, then not."^[21]

Here, the court held that the electoral history of CD-1 provided no evidence that the third Gingles condition—effective white-bloc voting—prevented minority voters from electing their preferred candidate, which would have necessitated a construction of CD-1 as a majority-minority district, similar to the construction of CD-1 by the General Assembly of North Carolina. Instead, Justice Kagan noted that the factual record identified CD-1 as a crossover district, one "in which members of the majority help a 'large enough' minority to elect its candidate of choice ... When voters act in that way, '[i]t is difficult to see how the majority-bloc-voting requirement could be met'—and hence how §2 liability could be established."

In Justice Kagan's view, the voting history of CD-1 as a crossover district ran counter to the state's argument that the Act required redrawing CD-1 as a majority-minority district in order to comply with the Act.

Because the state could not prove that the legislative drawing of CD-1 was narrowly tailored under a strict scrutiny analysis, the court ruled the district was unconstitutional. Thus, the court unanimously affirmed the district court's judgment on CD-1.^[21]

North Carolina's 12th Congressional District

Race v. partisan gerrymandering

Unlike the construction of CD-1, in which North Carolina admitted that race played a factor in the construction of the district, the state alleged that the construction of CD-12 was strictly a political gerrymander and that the district was drawn to increase the number of Democratic voters in the district and not to increase the number of minority voters in the district. Such a goal, the state argued, allowed them to achieve the pre-clearance provisions required by Section 5 of the Voting Rights Act (Act).

Justice Kagan acknowledged the correlation between political and racial considerations in designing legislative districts can result in oddly configured districts. She wrote,^[21]

In affirming the Middle District of North Carolina's judgment as to CD-12, Justice Kagan stated that, based on the fact-finding by the district court, that the U.S. Supreme Court was "far from having a 'definite and firm conviction' that the District Court made a mistake in concluding from the record before it that racial considerations predominated in District 12's design."^[21]

An alternative map requirement?

North Carolina advanced the argument that, under the Supreme Court's holding in Easley v. Cromartie (Cromartie II), a plaintiff alleging racial gerrymandering is required to submit an alternative map showing how the legislature could have achieved its political goals in a manner other than through the district map the legislature chose to adopt. The language in Cromartie II cited by the state reads,^[21]

The state claimed that producing an alternative map was essential to finding that CD-12 was a racial gerrymander and not a partisan one. Absent the map, which the respondents failed to provide at trial, the state argued that the claims regarding CD-12 as a racial gerrymander must be dismissed.

Justice Kagan rejected that view, holding that Cromartie II never established a categorical rule requiring a plaintiff to produce an alternative map in order to prove a racial gerrymander. All that was required in this particular case was for the district court's analysis to be plausible in order to satisfy a clear error analysis; in the court's view, the district court's fact-finding met that criterion.^[21]

Because the state made no attempt to justify race-based discrimination and because the district court made no clear error in concluding plausibly that race predominated in the construction of CD-12, the court ruled the district was unconstitutional. A five-justice majority of the court affirmed the district court's judgment on CD-12.^[21]

Concurring opinions

Justice Clarence Thomas filed a brief concurring opinion in this case. Thomas wrote separately to further explain his assessment of the court's clear error standard used in this case. He wrote,^[21]

Dissenting opinions

Justice Samuel Alito wrote an opinion concurring in the judgment in part and dissenting in part which was joined by Chief Justice John G. Roberts and Justice Anthony Kennedy. In his dissent, Justice Alito acknowledged that he agreed with the court's judgment as to CD-1 but dissented from the court's judgment as to CD-12.^[21]

North Carolina's 1st Congressional District

Justice Alito acknowledged in a footnote that he concurred with the holding of the court regarding CD-1. In acknowledging his position, Justice Alito wrote "I concur in the judgment of the Court regarding Congressional District 1. The State concedes that the district was intentionally created as a majority-minority district. ... And appellants have not satisfied strict scrutiny."^[21]

North Carolina's 12th Congressional District

The principal point of disagreement between Justice Alito's opinion and the court's opinion centered on whether an alternative map was required of plaintiffs alleging racial gerrymandering as a result of the court's opinion in Easley v. Cromartie (Cromartie II). Justice Elena Kagan, writing for the court in this case, held that the court's opinion in Cromartie II did not create a categorical rule mandating that plaintiffs present an alternative map showing how the legislature could have achieved its political goals in a manner other than through the district map the legislature chose to adopt.

Justice Alito rejected the court's view of the alternative map requirement from Cromartie II. In his view, such a map was required. He wrote,^[21]

Analysis without an alternative map

Justice Alito argued that, even in the absence of an alternative map, the district court committed clear error in finding that race predominated in the drawing of CD-12. In reviewing the evidentiary record, Justice Alito identified two themes. In his words,^[21]

The opinion

Filings

The court noted probable jurisdiction on June 27, 2016.

Merits filings

Parties' filings

• Pat McCrory et al., the petitioners, filed a merits brief on September 12, 2016. Gov. Roy Cooper (D-N.C.) became the named petitioner, ex officio, upon being sworn in as governor of North Carolina in 2017.

• David Harris and Christine Bowser, the respondents, filed a merits brief on October 12, 2016.

• McCrory et al. filed a reply brief on the merits on November 14, 2016.

Amicus curiae filings

The following group filed an amicus curiae brief in support of the petitioners, Pat McCrory et al.

• Brief of the Southeastern Legal Foundation et al.

The following groups filed amicus curiae briefs in support of the respondents, David Harris and Christine Bowser.

• Brief of the Brennan Center for Justice

• Brief of the Campaign Legal Center et al.

• Brief of the Constitutional Accountability Center

• Brief of the Lawyers' Committee for Civil Rights Under Law

Jurisdictional filings

Parties' filings

• Pat McCrory et al., the petitioners, filed a statement noting probable jurisdiction on April 8, 2016. Gov. Roy Cooper (D-N.C.) became the named petitioner, ex officio, upon being sworn in as governor of North Carolina in 2017.

• David Harris and Christine Bowser, the respondents, filed a motion to affirm on May 11, 2016.

• McCrory et al. filed a reply on May 24, 2016.

See also

• 

  Supreme Court cases, October term 2016-2017

• 

  Supreme Court of the United States

• 

  History of the Supreme Court

Footnotes

v • e Justices of the Supreme Court of the United States
Active justices	Chief justice: Roberts Associate justices: Alito • Barrett • Gorsuch • Jackson • Kagan • Kavanaugh • Sotomayor • Thomas
Senior justices	Breyer • Kennedy • O'Connor • Souter
Former chief justices	Burger • Chase • Ellsworth • Fuller • Hughes • Jay • Marshall • Rehnquist • Rutledge • Stone • Taft • Taney • Vinson • Waite • Warren • White
Former associate justices	Baldwin • Barbour • Black • Blackmun • Blair • Blatchford • Bradley • Brandeis • Brennan • Brewer • Brown • Burton • Butler • Byrnes • Campbell • Cardozo • Catron • Chase • Clark • Clarke • Clifford • Curtis • Cushing • Daniel • Davis • Day • Douglas • Duvall • Field • Fortas • Frankfurter • Ginsburg • Goldberg • Gray • Grier • Harlan I • Harlan II • Holmes • Hunt • Iredell • H. Jackson • R. Jackson • T. Johnson • W. Johnson, Jr. • J. Lamar • L. Lamar • Livingston • Lurton • Marshall • Matthews • McKenna • McKinley • McLean • McReynolds • Miller • Minton • Moody • Moore • Murphy • Nelson • Paterson • Peckham • Pitney • Powell • Reed • Roberts • W. Rutledge • Sanford • Scalia • Shiras • Stevens • Stewart • Story • Strong • Sutherland • Swayne • Thompson • Todd • Trimble • Van Devanter • Washington • Wayne • B. White • Whittaker • Wilson • Woodbury • Woods