Democrats and their ideological allies have enjoyed success in striking down Republican-drawn election maps over the past dozen years. But past wins could hurt their current redistricting lawsuits.

A recent court filing from Republican legislative leaders explains how.

“North Carolina redistricting plans have experienced virtually constant litigation for the past decade,” lawyers for Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, wrote on Dec. 22. “[T]he one ‘clear-cut’ proposition that has emerged is that voting in the State is not racially polarized at legally significant levels.”

Racially polarized voting is significant. Without it, no federal lawsuit claiming racial gerrymandering can succeed. All three current suits targeting Republican-drawn election maps rely on racial gerrymandering arguments.

In the case that prompted the Dec. 22 court filing, plaintiffs challenged the new state Senate map. Critics argue that lawmakers should have drawn a northeastern North Carolina district to help black voters elect the candidate of their choice.

Republican lawmakers identified a critical flaw in the argument.

“The Equal Protection Clause of the Fourteenth Amendment … prevents a State, in the absence of ‘sufficient justification,’ from ‘separating its citizens into different voting districts on the basis of race,’” legislators argued. “Under the governing framework, a state’s predominant use of race in redistricting is unconstitutional unless it is narrowly tailored to a compelling interest.”

The Voting Rights Act “pulls in the opposite direction,” insisting “that districts be created precisely because of race.” The VRA’s Section 2 “requires majority-minority districts” if there’s proof that a “protected class” has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

To win a Section 2 lawsuit, plaintiffs must prove what redistricting lawyers call three “Gingles preconditions.” The 1986 Thornburgh v. Gingles US Supreme Court ruling ended an earlier North Carolina redistricting fight. 

First, a minority group must be “’sufficiently large and geographically compact to constitute a majority’ in some reasonably configured legislative district.” Second, the group must be “politically cohesive.” Third, the white majority must vote “‘sufficiently as a bloc’ to usually ‘defeat the minority’s preferred candidate.’”

Beyond the three Gingles factors, a plaintiff “must then go on to prove that, under the totality of the circumstances, the district lines dilute the votes of the members of the minority group.”

The Supreme Court “has long assumed” that a district drawn “for predominantly racial reasons” can survive only if Gingles preconditions are present. “But if the state lacks a strong basis in evidence to believe that each is met, the majority-minority district will be an unconstitutional racial gerrymander,” legislative lawyers wrote.

The General Assembly’s then-new Republican leaders hired an expert in 2011 to conduct a polarized voting study. Based on the study, lawmakers drew 28 majority-minority districts for state House and Senate elections.

“A subsequent suit challenged each of these districts as racial gerrymanders, and it succeeded,” legislative lawyers explained. Judges ruled that the General Assembly never proved the third Gingles precondition.

Lawmakers responded to that decision by adopting a race-neutral approach to redistricting in 2017. Then state courts placed new “severe restrictions” on the use of race, “at the prompting of the lawyers who bring this suit,” according to the Dec. 22 brief.

When new census data led to updated maps in 2021, legal challenges focused on claims of partisan gerrymandering rather than racial gerrymandering. Courts forced lawmakers to draw “remedial” maps.

“In evaluating the remedial redistricting plans, both the state trial court and North Carolina Supreme Court considered whether [Section] 2 liability might arise under the General Assembly’s remedial plans, and both concluded that a polarized voting analysis of Dr. Jeffrey Lewis, who advised the General Assembly, demonstrated that [Section] 2 liability would not arise,” legislative lawyers wrote.

That’s important. Courts have told lawmakers within the past two years that election maps would not require districts focusing on race.

Yet plaintiffs’ lawyers have changed their tune.

“In tension with their prior advocacy, Plaintiffs’ counsel insist that the General Assembly’s failure to create a majority-minority Senate district in Vance, Warren, Halifax, Northampton, Hertford, Bertie, Martin, and Washington Counties amounts to an ‘egregious and clear-cut violation of Section 2.’”

“The best available evidence shows that a majority-Black district is unnecessary to ensure equal minority opportunity to elect” in challenged Senate districts, lawmakers argue. Plus “white bloc voting lacks legal significance.”

Redistricting law has an unfortunate tendency to shift from case to case. But if courts stick by recent findings that North Carolina faces no “legally significant” racially polarized voting, it’s hard to see how plaintiffs in today’s legal battles could win.

Mitch Kokai is senior political analyst for the John Locke Foundation.