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Cooper v. Harris (Amicus Brief)

Cooper v. Harris, formerly known as McCrory v. Harris, is a Supreme Court decision affirming a three-judge panel’s ruling that North Carolina’s 2011 congressional map was an unconstitutional racial gerrymander. The Brennan Center, along with co-counsel from Wilmer Cutler Pickering Hale and Dorr LLP, filed an amicus brief supporting the Plaintiffs-Appellees and asking the Court to affirm the panel’s decision.

Published: January 24, 2018

Note: The Brennan Center is not a participant in this case.

Case Background  

In October 2013, a group of voters challenged North Carolina’s 2011 congressional map in the U.S. District Court for the Middle District of North Carolina, alleging that the state’s General Assembly packed African-American voters into the 1st and 12th congressional districts. The case was heard by a three-judge panel, which, in February 2016, found that racial considerations predominantly motivated the drawing of both challenged districts, and struck down the maps.  In early 2016, the General Assembly redrew the maps and approved new congressional boundaries, although the plaintiffs here and elsewhere have alleged that the new map was a partisan gerrymander.

The state appealed the panel’s decision, seeking a ruling that the 1st and 12th districts of the 2011 plan did not violate the constitutional prohibition on racial gerrymanders.

The Brennan Center filed an amicus brief arguing that the broader political and legislative context for North Carolina’s 2011 congressional redistricting shows that racial considerations played a predominant—and therefore highly constitutionally suspect—role in the drawing of the state’s map. The brief contends that the General Assembly had both the motive and political opportunity to disadvantage African-American voters in 2011, and went so far as to pursue a series of legislative initiatives that undercut the African-American vote, including the congressional redistricting at issue in this case. Under these facts, the brief argues that the panel was right to subject the 2011 map to strict scrutiny, the most rigorous level of review that is available under the Fourteenth Amendment.

In early December 2016, the Supreme Court held oral argument in both Cooper and Bethune-Hill v. Virginia State Board of Elections, a racial gerrymandering case in which the plaintiffs claimed that Virginia’s legislature unconstitutionally used a minimum African-American voting-age population threshold of 55 percent in drawing a dozen legislative districts.

On May 22, 2017, the Court issued a 5–3 decision in Cooper rejecting the state’s appeal and affirming the panel’s conclusion that race was used impermissibly to configure the two districts.  The Court rebuffed the state’s contentions that the racial predominance inquiry required courts to find deviations from traditional redistricting criteria or required plaintiffs to offer alternative maps. Cooper also made clear that even if the legislature’s ultimate goal in using race to configure districts was to entrench a partisan advantage that would not save the redistricting from invalidation as a racial gerrymander. Finally, the Court emphasized that the question of whether racial considerations are “predominant” in redistricting is a factual question and that courts can look to a broad range of evidence to resolve it.


District Court

U.S. Supreme Court