Is the North Carolina legislature in a “Catch-22” or are its problems entirely of its own making? The Supreme Court might weigh in McCrory v. Harris.

McCrory v. Harris is a typical redistricting case in at least two respects. First, it raises so many legal issues that it is impossible to know what the Supreme Court will focus on. Second, beyond all the technical legal arguments, plaintiffs’ fundamental objection to the redistricting plan is familiar:  they claim the legislature packed minority voters into safe minority districts under the guise of complying with the Voting Right Act (VRA) to reduce minority voters’ influence in other districts. North Carolina claims it is caught in a “Catch-22.”

When North Carolina redistricted in 2010 it added two majority black voting age population (BVAP) districts. The two state legislators chairing the joint redistricting committee claimed that per Bartlett v. Strickland (2009) “districts created to comply with section 2 of the Voting Rights Act, must be created with [BVAP] . . . at the level of at least 50% plus one.” Section 2 of VRA prohibits minority vote dilution in redistricting.  While previously neither district was majority BVAP, African-American preferred candidates “easily and repeatedly” won reelection in the last two decades.

Plaintiffs in this case claim that creating these two majority BVAP districts was an unconstitutional racial gerrymander, which violated the Fourteenth Amendment Equal Protection Clause. An unconstitutional racial gerrymander occurs when race is the predominant consideration in redistricting and the use of race serves no narrowly tailored, compelling state interest.

Two of the three judges on the panel had little trouble concluding that race was a predominant factor in drawing both of the districts. The principal architect testified that race was the most important consideration in drawing boundaries of one of the districts.

The North Carolina legislature argued it had a compelling interest in relying predominately on race in redistricting to avoid vote dilution under section 2 of the VRA. But the court found no “strong basis in evidence” of a risk of vote dilution requiring a majority BVAP. Previously, the white majority hadn’t voted as a bloc to defeat African-Americans’ candidates of choice.

Merits briefs have not been filed in this case yet so it hard to know what the parties will focus on. The crux of North Carolina’s argument seems to be that it is caught in a “Catch-22.” It claims it created two majority BVAP districts to avoid vote dilution but in doing so it was found to be motivated predominately (and unconstitutionally) by race. The crux of the plaintiffs’ argument seems to be that the North Carolina legislature never had to create to majority BVAP districts first place.