Christopher G. Browning Jr., North Carolina’s solicitor general, defended the decision of officials there to violate a state law in order to create a district that included about 39 percent of the black voting-age population, saying the Voting Rights Act required the creation of the district to prevent the dilution of the minority group’s ability to elect a representative of its choice.
The fact that the district did not include a majority of black voters was a virtue, Mr. Browning said. True, he said, minority voters would be able to elect a representative of their choice only with the aid of voters from other groups. “Coalition districts help us in reaching the point where race will no longer matter,” Mr. Browning said.
Chief Justice John G. Roberts Jr. cut him off. “How can you say,” the chief justice asked, “that this brings us closer to a situation where race will not matter when it expands the number of situations in which redistricting authorities have to consider race?”
Justice Anthony M. Kennedy joined in, saying that Mr. Browning was “proposing a brave new world of coalition districts.”
Nathaniel Persily, a law professor at Columbia, said Justice Kennedy’s comments were a good guide to the case’s probable outcome, as he has been the swing vote in similar cases.
“Justice Kennedy seemed frustrated with the potential slippery slope that the state was falling down,” said Professor Persily, who attended the argument and had filed a friend-of-the-court brief in the case supporting neither party. “In race and redistricting cases in particular, and in redistricting cases in general, he has been the critical justice.”
In its decision last year, the North Carolina Supreme Court applied a strict numerical-majority requirement and rejected the district. The appeal in the case, Bartlett v. Strickland, No. 07-689, was filed by North Carolina’s attorney general, Roy Cooper, and other state officials. They said that nothing in the text of the federal law, its purpose or the court’s earlier cases mandated a numerical-majority requirement.
Several justices seemed to agree, saying or suggesting that a 50 percent requirement had the usual costs and benefits of what lawyers call “bright line rules.” They are easy to apply, but they can be arbitrary and inflexible.
The federal government, although it appeared in support of the residents of Pender County, N.C., who had successfully challenged the district in question, said a 50 percent requirement was too rigid. The underlying census data, the federal government said in its brief, can be subject to sampling errors and undercounting, and the data are in any event a historical snapshot that does not take account of changing demographics later.
“We would impose about a 2 percent cushion,” Daryl Joseffer, an assistant to the United States solicitor general, said Tuesday.
Justice Stephen G. Breyer proposed yet another number, one tied to the amount of crossover voting from whites needed to elect the minority group’s preferred candidate. “There’s a kind of natural stopping place,” he said. “When I worked out the numbers, it seemed that natural stopping place fell around 42-43 percent.”
Justice John Paul Stevens said all rigid mathematical rules had a common flaw. They assume, he said, “that the minority communities throughout the country are all alike.”
The court took no action on Tuesday in a case from West Virginia concerning campaign spending and judicial recusal. The case, Caperton v. A. T. Massey Coal Company, No. 08-22, concerns what role the federal Constitution ought to play, if any, in determining whether a State Supreme Court justice must disqualify himself from a $50 million case against a coal company after receiving more $3 million in campaign support from the company’s chief executive.
The court will again consider whether to hear the case at its private conference on Friday.