Stephenson Ruling Does not Require Racially Polarized Voting Analysis

Legislators disagreed during North Carolina’s recent round of redistricting on whether the General Assembly had to conduct a racially polarized voting analysis.

This raises at least two questions. The first is “What is racially polarized voting (RPV) analysis?”

At its most basic RPV analysis attempts to determine if White and nonwhite voters both vote as blocks. That analysis is part of the so-called “Gingles criteria” (from Thornburg v. Gingles, 1986) that courts use to determine if a redistricting plan violates the Voting Rights Act.

So, is the General Assembly required to conduct RPV analysis before drawing districts?

Newly appointed North Carolina Supreme Court Justice Allison Riggs seems to think so. She led a 2021 lawsuit that sought to force the General Assembly to conduct RPV analysis and use other racial data before drawing districts (page 33):

Plaintiffs seek injunctive relief requiring the North Carolina General Assembly to adhere to the requirements of Article II, Sections 3 and 5, as set forth in Stephenson v. Bartlett, and specifically to perform a meaningful attempt to determine whether there are any districts compelled by the Voting Rights Act, which, at a minimum, requires the consideration of racial data to understand changing demographics and to perform a Racially Polarized Voting Analysis where the racial demographics indicate potential VRA problems before designating county clusters required in Senate and House legislative maps.

Riggs’ complaint was eventually dismissed, but the argument persists.

However, litigants are unlikely to pursue that argument in state court. That is because the North Carolina Supreme Court already made it clear in its April 2023 Harper v. Hall III decision that there is no such requirement in Stephenson. The relevant section is from pages 129 through 132. Here is the bottom line:

The holding from Harper I that required the General Assembly to perform an RPV analysis before drawing any legislative districts was based on an inaccurate reading of Stephenson I [click through the link above to see why].

Because the North Carolina Constitution does not require the General Assembly to conduct an RPV analysis before enacting a redistricting plan, Common Cause’s arguments regarding the General Assembly’s RPV analysis are inapposite. Plaintiffs essentially ask this Court to “impose a judicially-mandated preclearance requirement” where no such requirement exists in our constitution. If Common Cause believed that the General Assembly was incorrect that no VRA districts were required, it could have brought a claim under Section 2 of the VRA. Common Cause did not bring such a claim in this case. Accordingly, the holding in Harper I that required the General Assembly to undertake an RPV analysis is overruled, and the portion of the 11 January 2022 Judgment dismissing Common Cause’s declaratory judgment claim with prejudice is affirmed.

So, while progressive litigants may still pursue VRA cases in state court, they will no longer be able to claim that Stephenson v. Bartlett requires drawing using racial data to conduct racially polarized voting analysis for drawing districts.