United States: U.S. Supreme Court Refines Equal Protection Analysis In Redistricting Cases

Last Updated: May 31 2017
Article by Kelly Sandill, Katie Ahlrich and Gene L. Locke

North Carolina's congressional districts have once again provided fodder for refinement of the complex intersection between the Fourteenth Amendment's Equal Protection Clause and Section 2 of the Voting Rights Act.

On May 22, 2017, the U.S. Supreme Court issued its opinion in Cooper v. Harris, 581 U.S. ___, No. 15-1262 (May 22, 2017), holding that North Carolina violated the Equal Protection Clause when it redrew two performing African American cross-over districts to be African American majority districts, allegedly in service to Section 5 of the Voting Rights Act and to avoid liability under Section 2 of the Voting Rights Act. The Court acknowledged that potential Section 2 liability can serve as a compelling governmental interest capable of surviving strict scrutiny to justify a race-based redistricting scheme. However, the Court refined its previous pronouncements on this point by explaining the type of evidentiary proof necessary to invoke Section 2 as a compelling interest. In her majority opinion, Justice Kagan rejected North Carolina's invocation of potential Section 2 liability, because the record showed no evidence that the state actually investigated and reasonably concluded that a plaintiff would be able to prove a violation of Section 2 in the future district if it were drawn without a predominant focus on race.

During its post-2010 census redistricting, North Carolina redrew two districts that had a substantial, but not majority, African American voting age population into districts that were majority minority. Id. Slip op. at 6. With regard to District 1, which was underpopulated by 100,000, the government added the necessary population by creating "finger-like extension[s]" off of the existing district to capture the African American population and avoid the white population, thereby increasing the African American population from 48.6% to 52.7%. Id. As to District 12, the population did not require significant changes, but the government nonetheless swapped out 50,000 white people for 35,000 African American people, increasing the African American population from 43.8% to 50.7%. Id. The plaintiffs, one registered voter from District 1 and one registered voter from District 12, challenged the new configurations as impermissible racial gerrymanders under the Equal Protection clause of the Fourteenth Amendment. Id.

The Court reaffirmed that an inquiry into allegedly impermissible race-based districting requires a two-step analysis. Id. at 2. First, the plaintiff must show that race was the predominant factor considered in the inclusion or exclusion of people in the district. Id. Second, where the government's purported compelling interest is compliance with Section 2, the plaintiff must prove that the government lacked a "good reason" or a "strong basis in evidence" to believe that a district drawn in the absence of predominant racial considerations would be invalidated under the three Gingles factors that serve as threshold proof requirements for a Section 2 claim: (1) the minority population is significantly large and compact to form a majority in a reasonably shaped district; (2) the minority group is politically cohesive; and (3) the majority population votes sufficiently as a bloc to usually defeat the minority population's preferred candidate. Id. at 2-3.

Finding that the lower court did not commit clear error in judging the evidence regarding race as the predominant factor in North Carolina's configuration of the new districts, the Court focused its analysis on whether North Carolina had "good reasons" or a "strong basis in evidence" to believe that meeting a racial majority threshold was necessary to comply with the Voting Rights Act. Id. at 11-12.

With regard to District 1, the Court concluded that North Carolina could not reasonably believe that absent a majority voting age African American population in the district, white voters would vote as a bloc to usually defeat the African American voters' candidate of choice. Id. at 14. The district had a long history of electing African American voters' candidates of choice despite the absence of an African American voting majority. Id. at 14-15. Moreover, there was no evidence in the record demonstrating that the state actually analyzed the potential electoral performance of a potential new district drawn without race as the predominant consideration. Instead, North Carolina defended its decision to require a majority African American voting age population in District 1 based on a belief that that the Court's prior decision in Bartlett v. Strickland, 556 U.S. 1 (2009) (plurality op.), mandated the drawing of majority-minority districts whenever possible. In Bartlett, the Court held that performing cross-over districts in which minority groups are able to elect their candidates of choice with the help of like-minded Anglo voters cannot satisfy the third Gingles factor. Id. at 16-17. Justice Kagan rejected the notion that Bartlett requires the drawing of majority minority districts, reasoning that the Court's decision in that case established that there is no wrong and no remedy under Section 2 with respect to a performing cross-over district. As such, it was not reasonable for North Carolina to conclude that the Voting Rights Act required District 1 to be drawn as a majority African American district. Id. at 17.

With regard to District 12, North Carolina claimed that the changes were made to the District in pursuit of partisan goals, rather than racial ones. Id. at 18. The Court found no clear error in the lower court's holding that racial considerations predominated in the drawing of the district. Id. at 21. Thus, because North Carolina had not presented any "good reason" for race-based districting with regard to District 12, the Court did not analyze the application of Gingles to the district and upheld the lower court's determination that District 12 was drawn in violation of the Equal Protection Clause. Id. at 34.

The take-away from Cooper for governmental bodies tasked with redistricting is that reliance on compliance with the Voting Rights Act as a basis for the predominance of race in apportioning population requires a specific evaluation of each of the Gingles factors with regard to both the existing district and the proposed district were it drawn without race as the predominant factor. A default to the position that majority-minority districts must be created whenever possible will not survive strict scrutiny under Cooper. The decision further underscores that redistricting remains an extremely complex area of the law in which expert demographic and legal guidance are essential to ensuring compliance with both the Voting Rights Act and the Constitution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions