By Lisa Soronen and Matt Dombowski

North Carolina has had a tough time in the U.S. Supreme Court lately.

Last week the court refused to review the 4th U.S. Circuit Court of Appeal's decision holding that North Carolina’s voter ID law is unconstitutional and violates the Voting Rights Act. This week it concluded two congressional districts are unconstitutional racial gerrymanders.

Cooper v. Harris raises an issue litigated over and over since the 2010 census.

Challengers claim the North Carolina legislature unconstitutionally packed minority voters into a few legislative districts to lessen their ability to influence races in other districts. The Supreme Court agreed holding 5-3 that a North Carolina District Court correctly ruled that North Carolina relied too heavily on race in designing two majority-minority congressional districts.

The Supreme Court has held that under the Equal Protection Clause if the use of race predominates in redistricting the district’s design must be “narrowly tailored” to serve a “compelling interest.” Complying with Section 2 of the Voting Rights Act (VRA), which prohibits vote dilution—“dispersal of [a group’s members] into districts in which they constitute an ineffective minority of voters”—is a compelling interest. A “strong basis in evidence” is needed to show the VRA requires race-based districting.

Following the 2010 census, the North Carolina legislature increased the number of black voting-age population from over 40 percent to over 50 percent in Districts 1 and 12.

North Carolina, practically speaking, conceded that race predominated in the drawing of District 1. The state argued it had a “strong basis in evidence” to conclude District 1 had to be majority-minority to avoid vote dilution. But to prove vote dilution a district’s white majority must vote as a bloc to usually defeat the minority’s preferred candidate.

 Here, Justice Elena Kagan, writing for the majority, pointed out for the last two decades District 1 was “an extraordinarily safe district for African-American preferred candidates.”

While North Carolina added nearly 100,000 new people to District 1, meaning the new district might be less safe for minority candidates going forward: “North Carolina can point to no meaningful legislative inquiry into what it now rightly identifies as the key issue: Whether a new, enlarged District 1, created without a focus on race but however else the state would choose, could lead to §2 liability.”

North Carolina argued that District 12 was a political gerrymander and not a racial gerrymander. But the Supreme Court agreed with the lower court that numerous evidence in the record indicated otherwise including statements of the redistricting committee chairs.

The court also rejected North Carolina’s argument that the challengers should have introduced an alternative map that “achieves the legislature’s political objectives while improving racial balance.” According to the court: “[a]n alternative map is merely an evidentiary tool to show that such a substantive violation has occurred; neither its presence nor its absence can itself resolve a racial gerrymandering claim.”

What happens next to the 2011 maps? As of right now, nothing. The 2011 congressional maps were already redrawn because of the district court’s order a year ago.

The remedial maps currently are being challenged as being motivated by partisanship. A district court panel has rejected these claims on the premise that they are non-justiciable. The plaintiffs have asked the Supreme Court to review the panel’s decision.

Time will tell whether the remedial plan will be thrown out as well.  As for now, those remedial maps are the maps of record in North Carolina.

Redistricting fans must sit and wait to see if the Supreme Court decides to hear this additional case, and another that addresses partisan mapmaking as well, Gill v. Whitford from Wisconsin.

Lisa Soronen is executive director of the State and Local Legal Center and is a frequent contributor to the NCSL Blog on legal and judicial issues. Matt Domboski is a law student at the University of Denver and a legal intern with NCSL.