In overviews of the Supreme Court’s current term, the conventional wisdom is that the court is mostly shying away from controversial cases and topics, as it waits to learn when it will have a ninth justice and who that justice will be. There are currently no cases on the docket involving, for example, abortion, affirmative action or gun rights. But the justices have not been avoiding another hot-button topic: race, and how it intersects with issues like the death penalty, juror bias and mortgage lending. Next Monday, the court will take on two more cases related to race, this time as it plays a role in the process of drawing legislative maps. The justices’ rulings in those cases could provide important guidance on when the use of race in redistricting goes too far and how courts should make that determination.

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When creating new legislative maps, some states say that they feel stuck between a rock and a hard place. On the one hand, the Voting Rights Act requires states with large minority populations to consider race when drawing district lines. On the other hand, the Supreme Court has ruled that the Constitution bars states from making race the predominant factor when they draw districts. Election law expert Rick Hasen has called this the “Goldilocks” principle, because states need to get the balance just right. Political realities make striking this balance even more complicated, because there is often a strong correlation between race and political party. African-Americans are overwhelmingly likely to support Democratic candidates, and whites are more likely to vote Republican. So if a legislature adds white voters to a district and moves out African-American voters, is it doing so because it wants a district with more white voters, or just more Republicans?

The Supreme Court has already considered these issues twice in the last two years. In 2014, it reviewed a pair of challenges to Alabama’s new maps for state legislative districts. The challengers contended that the new plan packed more African-American voters into districts in which a majority of voters was African-American, resulting in other districts with more white voters in which the influence of African-Americans was reduced. The state countered that it was simply trying to comply with the Voting Rights Act and maintain the same percentage of African-Americans in majority-minority districts. In March 2015, the justices sent the case back to a lower court. By a vote of five to four, the court ruled that the lower courts should focus on the role that race played in each individual district, rather than looking at the state as a whole. And, the justices added, the states do not necessarily need to retain the same percentage of minority voters in a specific district; what is important is the ability of minority voters to elect the candidates of their choice.

More recently, the court took up a challenge to Virginia’s 2012 congressional redistricting plan. Much like the challengers in the Alabama case, minority voters argued that the redistricting by the Republican-controlled legislature had diluted their votes by packing them into one district. But the court never reached the merits of the case: When the state declined to appeal the lower court’s ruling against it to the Supreme Court, three members of the U.S. House of Representatives appealed to the Supreme Court instead. The justices agreed unanimously that the House members did not have a legal right to sue, because there was no evidence that they had suffered any injury.

Next week’s cases will give the justices another opportunity to flesh out standards for the use of race in redistricting. The first case, Bethune-Hill v. Virginia State Board of Elections, arises from the redistricting maps that were drawn for state elections in Virginia after the 2010 census. The redistricting plan, which was approved by both the Virginia House of Delegates and the U.S. Department of Justice, provided for 55 percent of the voters in each of 12 majority-minority districts to be African-American. The plaintiffs in this case, who live in the challenged districts, argue that those 12 districts are the result of racial gerrymandering: They were illegally packed with African-Americans, which in turn diluted the voting strength of African-Americans in other nearby districts, making the other districts friendlier to Republicans.

The case went first to a three-judge district court, which ruled – by a vote of two to one – that, except in one district, race did not play a predominant role in drawing the districts. The district court ruled that, even if the architects of the maps had used a fixed threshold of African-American voters in each district, the plaintiffs would have to show (but had not shown) an “actual conflict between traditional redistricting criteria and race,” in which race had prevailed over those traditional criteria.

The plaintiffs asked the Supreme Court to weigh in on the legal standard that the three-judge district court used to determine that the 12 districts, for the most part, passed muster. They contend that, under the district court’s reasoning, the plaintiffs in a racial gerrymandering case would have to show that factors other than race did not play any role in the redistricting decisions. “The practical effect” of such a rule, they warn, “is to legalize the intentional sorting of voters on the basis of race as long as the legislature does it neatly enough.”

Instead, the plaintiffs continued, the challengers in a racial gerrymandering case should only have to show that race was the “predominant” factor behind the legislature’s decision to move voters in or out of a district. If they can make such a showing, the burden then shifts to the defendants, who must show that use of race in redistricting was narrowly tailored to advance a compelling government interest – a test known as strict scrutiny.

The Virginia legislature and the speaker of the Virginia House of Delegates entered the case to defend the districts. They point out that setting the number of African-American voters at 55 percent in each of the challenged districts hardly worked a big change from the prior maps, because 55 percent of voters in “the vast majority” of those districts were already African-American. Moreover, they continue, the Supreme Court has never ruled that using a fixed target of African-American voters, without more, is enough to subject the use of race to strict scrutiny. And in this case, the architects of the map had good reason to use that target: They concluded that using a lower target number of African-American voters could jeopardize the state’s compliance with the Voting Rights Act. Nor did race trump other traditional districting principles in the redistricting process, the legislators maintain.

What is really going on, the legislators suggest, is politics as usual. This challenge to the redistricting plan was not filed for several years after the plan had been passed, they note, following a change in control of the governor’s mansion. Virginia Democrats, they contend, “saw an opportunity to alter the State’s partisan balance by invalidating the current maps and then leveraging the newfound threat of a gubernatorial veto as new maps are drawn.” And what the plaintiffs are essentially asking the court to do in this case, they caution, boils down to something that the Supreme Court “has repeatedly deemed inappropriate when it comes to the core sovereign function of drawing districts: to force the courts to second-guess every districting decision a State makes.”

The second case, McCrory v. Harris, is a challenge to the maps that North Carolina’s legislature drew for two congressional districts in the state: NC-1 and NC-12. The justices are not strangers to these districts, which have been at the heart of four earlier racial gerrymandering cases at the Supreme Court. Describing NC-12 as a “textbook example of racial gerrymandering,” a three-judge district court struck down both districts earlier this year. It ruled that state legislators had illegally packed those two districts with African-American voters, reducing the influence of African-American voters elsewhere.

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Defending the districts, North Carolina Republicans maintain that the redistricting of NC-12 was not about race, but was instead part of an effort to maximize the number of congressional districts that would elect Republican candidates. Indeed, they emphasize, the consultant who drew the plan only consulted political data from the 2008 presidential election and did not consider racial demographics at all when drawing the district. And because of the close correlation between race and political party, they argue, drawing legislative districts to account for the voters’ preferred political parties can result in district lines that correlate with race. When that happens, they continue, the plaintiffs must “do more than show that race is a possible explanation for a district’s lines.” Rather, they must demonstrate that the legislature “actually subordinated traditional race-neutral districting principles” to race.

The Republicans acknowledge that NC-1 was “intentionally drawn as majority-minority district,” but they reject any inference that race predominated in the redistricting process. Instead, they explain, the district needed to be “substantially altered” during the most recent redistricting because it was severely underpopulated. The state could not simply add voters from the nearby counties, in which a majority of voters are white, because it wanted to avoid running afoul of the Voting Rights Act – which they characterize as a real possibility when (among other things) a minority candidate had only won the most recent election in the district by a relatively small margin. The real question, they tell the justices, is what the state’s motives were in drawing a particular district, and whether “the legislature used politics as a pretext for intentionally discriminating against a minority group.” What courts should not do, they emphasize, is “ensnare legislatures that did their level best to comply with competing statutory and constitutional commands only to misjudge matters by a few percentage points.”

The plaintiffs who challenged the two congressional districts push back against the Republicans’ proffered justifications for the redistricting. They dismiss the Republicans’ explanation that NC-12 was drawn based on politics, rather than race, as an after-the-fact rationalization. Even the architects of the redistricting plan, they assert, indicated that the number of African-American voters in the district had been increased to comply with the Voting Rights Act. And both the shape of NC-12 and its racial demographics, they argue, are consistent with the district court’s conclusion that the North Carolina legislature “subordinated traditional districting criteria to racial considerations in crafting” the district.

The same is true, they continue, for NC-1, for which they describe the evidence that race was the predominant factor as “overwhelming.” The plan’s architects, they tell the justices, “repeatedly confirmed” that NC-1 was drawn as a “Voting Rights Act” district because “they believed, mistakenly,” that “they were required to draw majority-minority districts whenever possible.” In pursuit of that goal, the plaintiffs add, “traditional redistricting principles were cast aside whenever they got in the way of the overriding goal of drawing” the district so that it had a majority of African-American voters.

With only eight justices, the court may face a stiff challenge: how to reach a consensus that will reconcile the two lower-court rulings, which at least on their face point in two different directions, and – if possible – lay down broader principles to govern future racial gerrymandering cases. Next week’s oral arguments may provide some clues as to how the justices plan to tackle that challenge.

Posted in Bethune-Hill v. Virginia State Board of Elections, Cooper v. Harris, Featured, Merits Cases

Recommended Citation: Amy Howe, Argument previews: Racial gerrymandering returns to the court, SCOTUSblog (Nov. 30, 2016, 11:54 AM), http://www.scotusblog.com/2016/11/argument-previews-racial-gerrymandering-returns-to-the-court/