*The name of this case has been changed from McCrory v. Harris to Cooper v. Harris.

After the 2010 Census, the North Carolina General Assembly redrew its congressional map. Before redistricting, black voters in two of North Carolina’s congressional districts, CD 1 and CD 12, were able to elect candidates of their choice despite not making up a majority of the voting age population in those districts. In other words, there was enough crossover voting by Anglo voters supporting the minority candidate of choice that the districts regularly elected minority candidates.

Nonetheless, when the General Assembly redrew the maps in 2011, it intentionally added thousands of black voters to CD 1 and CD 12 to increase the black voting age populations in those districts to above 50 percent. By purposely increasing the concentration of black voters in CD 1 and CD 12, where black voters were already consistently able to elect candidates of their choice, the General Assembly sought to diminish the impact of black voters in other parts of the state. 

North Carolina voters challenged the actions of the General Assembly in 2013, arguing that the state used an impermissible racial quota to draw the districts. Because the racial quota was the “predominant factor” in drawing CD 1 and CD 12, the voters argued that the two districts constitute unconstitutional racial gerrymanders. 

A three-judge district court panel found that race was indeed the predominant factor in drawing both CD 1 and CD 12. The court also found that the General Assembly’s reliance on race was not narrowly tailored to protect minority voting rights and prevent liability under the Voting Rights Act.

The state appealed the decision of the three-judge court to the Supreme Court, which noted probable jurisdiction in June of 2016. Argument in the case is not yet set, but will likely occur during the October 2016 Term.

What’s At Stake

Overturning the district court decision and upholding CD 1 and CD 12 as drawn would sanction state legislatures’ explicit use of race to achieve partisan benefit. Such a decision would also ratify the state’s disingenuous use of the Voting Rights Act, a key tool for protecting minority voting power, as a shield for their purposeful dilution of black voting power across the state.

The General Assembly puts forward two defenses to their racially motivated districting in CD 1 and CD 12; both are dangerous and incorrect. First, the General Assembly argues that the fifty percent threshold for CD 1 was necessary to protect itself from future vote dilution claims under Section 2 of the Voting Rights Act of 1965 (VRA). Since CD 1 regularly elected minority candidates already, this argument is unsupportable. Rather, the General Assembly is seeking to use the VRA’s protection of minority ability-to-elect districts to shield itself from liability when it unnecessarily packs black voters to minimize their power elsewhere.

The General Assembly has further argued that CD 12 is constitutional because the use of race to sort voters is coextensive with the General Assembly’s political goals. This cannot be the rule. The Supreme Court has repeatedly held that the use of race as a proxy for partisanship is no more constitutional than any other predominant use of race in redistricting.

CLC submitted a friend-of-the-court brief in support of the North Carolina voters who challenged North Carolina’s racial gerrymander. The League of Women Voters, the Voting Rights Institute, the Racial Justice Project at New York Law School, the National Council of Jewish Women, and the National Association of Social Workers also signed on to the brief.

This case is one of a series of Supreme Court cases CLC has engaged in on the question of racial gerrymandering that unfairly diminishes the voting power of minority voters. This Term, in Bethune Hill v. Virginia State Board of Elections, CLC submitted a friend-of-the-court brief in support of the Virginia citizens and voters who challenged Virginia’s racial gerrymander of the state legislature. Bethune Hill also challenged the use of racial quotas in redistricting and race as a proxy for partisanship. Last Term, CLC submitted a friend-of-the-court brief in Wittman v. Personhuballah, another Virginia case, about the congressional map, where legislators packed black voters into one district as a means of gaining partisan advantage. 

The federal campaign laws have long placed limits on what individuals and certain entities can give to political parties in connection with federal elections. The reason for these limits is simple: political parties should focus on engaging average voters instead of doing the bidding of just a handful of wealthy donors.

But loopholes in post-Watergate reforms allowed parties to bypass the limits. Political parties began soliciting and accepting “soft money,”[1] or large, unlimited contributions from individuals, corporations and labor unions, to pay for “issue” ads that avoided directly calling for the election or defeat of a particular candidate but otherwise looked and sounded like campaign ads. Parties also used these unlimited contributions to fund activities that they claimed related to state and local elections, as well as mixed-purpose activities benefiting both federal and state candidates such as get-out-the-vote efforts. Although these funds were supposedly “non-federal,” they were used for activities that significantly boosted the prospects of candidates at all levels of the ticket, including federal candidates.

By soliciting and spending large soft-money contributions, parties could help donors evade the base limits for contributions to federal candidates, and those donors could exploit the naturally close ties between the parties and those candidates to obtain political favors – which the congressional record shows included anything from favorable legislative action to overnights in the Lincoln bedroom.

Congress sought to plug the so-called “soft-money loophole” by enacting the Bipartisan Campaign Reform Act (“BCRA”) in 2002, which imposed limits on the contributions that federal, state and local party committees could collect. One BCRA provision established limits on contributions to state and local party committees insofar as the funds were spent on “Federal election activity,” which included:

• Voter registration activities within 120 days of a federal election;
• Voter identification, generic campaign activities, and get-out-the-vote activities in years when federal, state and local candidates appear on the ballot;
• Public communications that promote or attack a federal candidate;

• Compensation for party employees spending more than 25 percent of their time on federal election activities.

THE REPUBLICAN PARTY OF LOUISIANA’S LEGAL CHALLENGE

The Republican Party of Louisiana is asking a three-judge federal district court in D.C. to undo the “soft money” limits applicable to state and local party committees engaged in federal election activity. The plaintiffs argue that the First Amendment prohibits Congress from limiting the sources and amounts of any contributions used by the party committees for independent activities. The challenge boils down to one erroneous proposition: contributions to state and local political parties cannot be corrupting as long as they are not spent in coordination with a candidate. However, this flies directly in the face of both common sense and controlling Supreme Court precedent.

The three-judge court hearing this case is bound by the Supreme Court’s 2003 decision in McConnell upholding this specific soft money restriction. Even so — because the case is proceeding under an expedited judicial-review mechanism in BCRA allowing for a three-judge court with direct appeal to the Supreme Court — the case could be a blockbuster.

WHAT’S AT STAKE: THE RETURN OF SOFT MONEY

This case is yet another attempt to dismantle BCRA’s pro-democracy reforms and restore the soft-money era — so the stakes are high. Some have likened it to the next Citizens United, recognizing that it has been brought by the same lawyer, who claims he won’t rest until every money-in-politics rule has been overturned.

If these modest limits are struck down, it would severely damage the ability of everyday voters to have their voices heard over the din of big-money donors, as well as exacerbate the public’s fear that their elected representatives are beholden only to the wealthy donors who fund their campaigns for office.

The Campaign Legal Center has filed a friend-of-the-court brief arguing the challenged provision is a crucial firewall against the well-documented abuses of the soft-money era. To strike it down would blow an enormous hole in the anti-corruption edifice that Congress erected with BCRA, as it would once again enable state and local party organizations to serve as conduits for corrupt exchanges between candidates and donors.

**On Nov. 7, a three-judge district court panel upheld  BCRA’s limits placed on what individuals and certain entities can give to political parties, citing the precedent in McConnell upholding the soft money restriction. The Republican Party of Louisiana has filed a direct appeal with the U.S. Supreme Court, and the parties are currently briefing the question of whether the Court should hear argument or simply affirm the district court.

***On May 22, 2017, the U.S. Supreme Court summarily affirmed the decision made by the three-judge district court, effectively keeping hte restriction in place. Read our press release on the news.

Read our one pager about the case

For more information about the case, contact the Campaign Legal Center at [email protected].

[1] Under the federal campaign laws, all “contributions” must be made from funds that comply with the law’s disclosure requirements and source and amount restrictions—i.e., from “federal” or “hard” money.

About

The state Republican parties of New York, Tennessee and Georgia challenged an important safeguard that prevents pay-to-play practices in municipal advisory services. The rule adopted by the Municipal Securities Rulemaking Board (MSRB) bars investment firms from soliciting government business for its municipal financial advisory services for two years after a firm or its associates make more than the legal minimum contributions to state or municipal officeholders who have influence over the award of such advisory contracts.

In its amicus brief, CLC argues that the state parties challenging the rule are ignoring extensive evidence of pay-to-play activity at both the federal and state levels, and the self-evident risk that allowing a municipal advisor to make substantial campaign contributions to officeholders with control over awards of municipal advisory business will give rise to corruption, or at a minimum, the appearance of corruption. The rule was adopted to ensure high standards of integrity in the municipal securities market and to prevent conflicted officials from awarding municipal advisory business to those who “pay to play.”

Case Status

Petitioners filed their merits brief on Nov. 16, 2016 and respondents filed their brief on Dec. 19, 2016. CLC filed a friend-of-the-court brief on Dec. 23, 2016, urging the Sixth Circuit Court of Appeals on to reject the challenge to the rule. Oral argument was heard before the Sixth Circuit May 4, 2017.

UPDATE: On July 13, 2017, the Sixth Circuit decided not to take the case because it lacked standing. This means that the rule will stand.