Key justice questions ‘packed’ voting districts

must maintain at least a 55 percent black voting population.

And in North Carolina, Republican leaders moved tens of thousands of black voters in the Greensboro area into a district that had regularly elected a black Democrat to Congress.

The Republicans said they acted to comply with the Voting Rights Act. The landmark law has been understood to mean states may not take steps that would reduce the number of districts which elect minority representatives. GOP lawmakers in both states argued they were protecting those seats.

They also insisted that their primary motivation was partisan politics, not race. Paul Clement, the former Solicitor General who was representing the Republicans, described the central North Carolina district as a “political draw.” He said the state’s expert drew the district map based on “political data. He drew the map to draw Democrats in and Republicans out.”

Redrawing electoral districts based on partisan gerrymandering is not only a time-honored political tradition, he argued, it is legal.

But Marc Elias, lawyer for the Democrats, said the evidence produced at a trial showed the Republicans acted based on race.

He noted that North Carolina legislators moved 75,000 African-Americans into a district that had faithfully elected Rep. Mel Watt, a black Democrat, for more than 20 years before he left to lead the Federal Housing Finance Agency.

The exchange highlighted an issue that has bedeviled the justices and confused lower courts. Under the Constitution’s guarantee of equal protection, states may not make decisions based on race, but they may act based on political considerations. That distinction becomes murky when considering that African-Americans vote reliably for Democrats.

So is shifting black voters from one district into another a racial move or political one?

“This is such a complicated area,” said Justice Stephen G. Breyer. He noted that when pressed, Republican leaders acknowledged that “the reason we did that is most African-Americans voters vote for Democrats.”

The recent spate of redistricting cases put a spotlight on how the two ideological sides have shifted. Twenty years ago, the court’s conservatives struck down districts in which race was used as the predominant factor, pushing aside objections from liberals who said such plans were needed to elect minorities. But since the redistricting following the 2010 census, it is the now Democrats who have objected to the role of race in redrawing of districts.

Among the justices, only Kennedy has stuck to the same position. He objected to the race-based redistricting in the 1990s and last year rejected race-based electoral districts in Alabama.