The Supreme Court struck down North Carolina's redistricting plan based on their continued total incoherence on the subject of redistricting. It all boils down to this, and will continue to boil down to this: use race, but don't use race. Use just the right amount of race, or we'll strike down your redistricting plan.
Here's the bind. Definition time. Descriptive representation: having people in office with similar demographic traits to your own. The Voting Rights Act effectively requires that states draw "majority-minority" districts, which are districts in which a majority of the population is of a racial or ethnic minority because, basically, white people will only vote for white people, so the only way non-whites get descriptive representation is if enough of the population of the district is non-white that the minority group gets to pick their own Representative.
But, you can't do things exclusively based on race. So, use race, but not too much. There's the bind. Every redistricting plan gets challenged, on the basis of race. Well, I suppose you can't challenge a redistricting plan in Wyoming, but fuck Wyoming. (In principle, you could challenge a state legislative plan there, but isn't the state all-white anyway? No, I'm not going to bother to look it up. I'm going to make an ass out of u and me. It's fucking Wyoming. Fuck them. If you are reading this from Wyoming, no you're not.)
Then there's the problem that race and party are really closely intertwined, particularly in the South.
That means we need to talk about party, and partisan gerrymandering. So, here's a little demonstration I like to use when I teach about how to take partisan advantage of the redistricting process. Imagine a group of 33 people, 21 Democrats and 12 Republicans, to be grouped into 3 districts. How could Republicans manipulate that process? Imagine if they could pack 11 Democrats into one district, and then "crack" the remaining 10 into groups of 5 and 5? That way, in District 1, you get 11 Democrats and 0 Republicans, and in Districts 2 and 3, you get 6 Republicans and 5 Democrats each? This is called a "pack and crack" strategy. You know what that packed district is? It is a majority-minority district. Republicans have strategic incentives to pack as many minorities as possible into those majority-minority districts because they are wasted votes. The way to get a partisan advantage is to make your majorities efficient and to make the other party's majorities inefficient.
And if you are doing so for minority representation under the Voting Rights Act, that's totally cool. If you are doing it for partisan advantage, um... And this is where we get into the meat of the case, and the broader question of the "justiciability" of the partisan gerrymander, which isn't even really what Cooper v. Harris was about. However, the Court has been tiptoeing around that one for decades. They sorta-kinda want to be able to strike down plans that give too much of a partisan advantage to one party, but can't decide where to draw the line (and besides, since the Justices are kind of partisan, will they really be consistent over time once they start?).
Anyway, the Supreme Court didn't give a clear line for how much race can be taken into account. They'll never do that. Why? They can't. The idea of creating such a rule is absurd and stupid. It'll never happen. As long as they have the Voting Rights Act working against the principle of "it can't be all about race," they will be in similar binds.
No, Rick Hasen is pretty much right here, and people who really care about obscure topics like this should follow the Election Law Blog. This just opens up the flood gates for challenge after challenge. That example I used above for the partisan gerrymander? It is the same one I use in every class in which I teach the subject, and I always point out that the district with 11 Democrats is a majority-minority district.
The Supreme Court has now recognized that fact, and decided that it means that a partisan gerrymander in the South basically is a racial gerrymander. That means they will be more willing to strike down partisan gerrymanders, at least in the South. When Trump fired Comey, I referenced Ben Bradlee and the "holy shit" thing. Rick Hasen is a mellow sort of guy who wrote things like, "wow," and, "holy cow."
Fuck that. Holy shit.
