Kimberly Hermann is General Counsel at Southeastern Legal Foundation.

The government should not consider race when it is drawing electoral district lines – the lines should be drawn based on where people live, not based on the color of their skin. With that said, we would be naïve to ignore the delicate balancing act thrust upon state legislatures when drawing redistricting maps. Electoral districting is one of the most difficult tasks that state legislatures face. On the one hand are the many requirements of the Voting Rights Act that result in states considering and sorting their citizens based on race, and on the other hand is our color-blind Constitution, including the equal protection clause’s prohibition against certain racial classifications. These competing requirements demand that states consider race, but not too much or in the wrong way.

To the extent that the Voting Rights Act and the Supreme Court’s cases call for the consideration of race in redistricting, those calls should be interpreted narrowly and consistently with the Constitution. This is because racial classifications of any sort are inherently suspect and demand the most exacting scrutiny. In answering questions about how governments should zig and zag in drawing district lines, the Supreme Court’s past precedents support striking a balance that is simultaneously most consistent with the statutory text and the Constitution and least race-conscious. Similarly, the statutory text should be interpreted so that it avoids racial classifications and preferences that are presumptively unconstitutional.

The inherent conflict between the Voting Rights Act and the Constitution leads to frequent litigation and recurring consideration of the issue by the Supreme Court. This term the Supreme Court considered two redistricting cases. Both centered around claims that state legislatures illegally considered race and thus diluted the strength of the minority vote. In Bethune-Hill v. Virginia State Board of Elections, the plaintiffs claimed that 12 historically majority-minority state districts in Virginia drawn to ensure that African-American voters constituted at least 55 percent of the voting population in each district violated the equal protection clause. And in Cooper v. Harris, the plaintiffs claimed that two congressional districts in North Carolina drawn as majority-minority districts despite decades as crossover districts (districts with a majority of white voters who historically vote for a minority candidate) violated the equal protection clause.

Each redistricting case brings with it the promise of clarification on the use of race in drawing electoral districting maps and the potential reconciliation of the competing demands presented by the Voting Rights Act and the equal protection clause. This term’s cases, Bethune-Hill and Cooper, were no exception.

Yesterday, the Supreme Court affirmed the district court’s finding that both North Carolina districts at issue in Cooper violated the Constitution. Because it provides a synthesis of the court’s test for determining whether a redistricting plan constitutes a racial gerrymander that offers lower courts and litigants some guidance on burdens of proof and adjudicative analysis, yesterday’s opinion in Cooper will be cited often. To understand the implications of the court’s decisions in both Cooper and Bethune-Hill, the two-step test to determine whether a redistricting plan constitutes a racial gerrymander is worth repeating. First, a plaintiff must prove, through direct or circumstantial evidence, that race was the predominant factor motivating where the state legislature drew the district lines. If the plaintiff satisfies its burden, then the state must prove that its consideration of race served a compelling interest and is narrowly tailored to satisfy that interest.

Both cases presented the court with an opportunity to clarify what a plaintiff must show to prove that race was the predominant factor motivating the legislature’s decision, and both decisions did so to a degree. First, in Bethune-Hill, the court explained that to establish racial predominance, a plaintiff only needs to show that a state subordinated traditional race-neutral districting principles (such as compactness, contiguity of territory and respect for communities of interest) to racial considerations, and does not need to prove the existence of an actual conflict between traditional criteria and race. When no conflict exists, the challenger can establish racial predominance through direct evidence of legislative purpose and intent or other compelling circumstantial evidence. Applying the analysis set forth in Bethune-Hill to North Carolina’s Congressional District 1, the court in Cooper found racial predominance. With respect to the second North Carolina district, CD12, the court held that maps showing that the state legislature could have achieved its goals without considering race can support a plaintiff’s claim of racial predominance, but are by no means required to satisfy a challenger’s burden of proof. Presumably, such maps could constitute the other compelling circumstantial evidence the court referenced in Bethune-Hill.

Both cases also presented the court with an opportunity to clarify the application of strict scrutiny in redistricting cases, and again the decisions did so to a degree. Both Virginia and North Carolina argued that they needed to consider race when drawing the redistricting maps to ensure compliance with the Voting Rights Act. The court acknowledged that it has historically assumed that compliance with the Voting Rights Act is a compelling interest, and moved on to the narrow-tailoring requirement.

In Bethune-Hill, the court affirmed the district court’s finding that the state’s consideration of race was narrowly tailored because Virginia had presented a strong basis in evidence to support its argument that a 55 percent black voting-age population in District 75 was needed to avoid violating the Voting Rights Act. The court noted that the legislature had performed functional analyses of electoral behavior, discussed the district lines with incumbents and considered other factors such as turnout rates and the number of minority prisoners. The court explained that to hold otherwise “would afford state legislatures too little breathing room” and trap them between the Voting Rights Act and the equal protection clause.

In stark contrast, a unanimous court affirmed the district court’s finding in Cooper that the state’s consideration of race in drawing CD1 was not narrowly tailored because North Carolina had failed to provide any evidence that it needed to draw CD1 as a majority-minority district to avoid violating Section 2 of the Voting Rights Act. The court explained that to justify drawing a majority-minority district as an attempt to comply with the Voting Rights Act, a state must have a good reason, grounded in a strong evidentiary basis, to think that the three requirements for establishing a Section 2 violation as set forth in Gingles v. Thornburg are met. The court concluded that unlike Virginia, North Carolina had failed to evaluate carefully (or evaluate at all) whether leaving CD1 as a majority-white crossover district would violate Section 2.

Despite the Supreme Court’s apparent and understandable exhaustion after having confronted multiple and recurrent redistricting challenges (this is the fifth visit to the Supreme Court for one of the North Carolina districts), the court’s opinions provide little additional guidance to state legislatures on how to walk the line between considering race too little or too much. To ensure compliance with the Voting Rights Act, the court continues to require states to sort their citizens on the basis of race. Such race-based redistricting encourages racial essentialism, racial appeals and identity politics generally. In doing so, it discourages interracial coalition-building and broader nonracial appeals. As Justice Clarence Thomas pointed out in his Bethune-Hill opinion, in which he concurred in part and dissented in part, the requisite race-based sorting required by the Voting Rights Act is fundamentally at odds with our Constitution, which “neither knows nor tolerates classes among citizens.” It is worth noting that the judicial branch can only do so much to resolve the conflict – the true power lies with Congress, which has the ability to amend the Voting Rights Act so that it no longer requires the consideration of race.

Posted in Bethune-Hill v. Virginia State Board of Elections, Cooper v. Harris, Symposium on October Term 2016’s racial-gerrymandering decisions, Featured, Merits Cases

Recommended Citation: Kimberly Hermann, Symposium: Court provides clarification of redistricting challenges, but conflict on use of race remains, SCOTUSblog (May. 23, 2017, 12:04 PM), http://www.scotusblog.com/2017/05/symposium-court-provides-clarification-redistricting-challenges-conflict-use-race-remains/