Symposium: Court clarifies review of racial gerrymandering, but does not impose strict scrutiny on every intentional creation of a majority-minority district

Kristen Clarke is President and Executive Director of the Lawyers Committee for Civil Rights Under Law.Ezra Rosenberg is Co-Director of the Voting Rights Project of the Lawyers Committee for Civil Rights Under Law.

As we prepare for the upcoming round of 2020 redistricting, the opinions inBethune-Hillv. Virginia State Board of ElectionsandCooper v. Harrismake clear that what constitutes unlawful racial gerrymandering will prove critical. Although states and localities can act intentionally to preserve and create majority-minority districts, they must do so in a way that complies with the Constitution.First, and put simply, race cannot predominate over every other consideration.And, second, unlawful racial gerrymandering cannot be justified as an attempt to achieve partisan ends.

The decisionsprovide aworkable approach for addressing allegations of unconstitutional racial gerrymanders, while at the same time rejecting the propositionthat the intentional creation of a majority-minority election district automatically triggers strict scrutiny. This is clearfrom the sum and substance of the majority opinions,and from the explicit language inthe separate opinions of Justices Samuel Alito and Clarence Thomas inBethune-Hilland that of Thomas inCooper.Acontrary resultwouldhave imperiledlegitimate attempts by state legislatures to create majority-minority districts.

Although themajority opinioninBethune-Hillreformulated the standardapplicable to racial gerrymandering casesto move away from over-reliance oncompliance with traditional districting principles, in Justice Anthony Kennedys words, The Equal Protection Clause does not prohibit misshapen districts itleft room for legislatures to draw majority-minority districts intentionally without implicating constitutional concerns. The court did not expressly rule in Bethune-Hill that setting a targetpercentage of a minority population to be included in an election district does not automatically trigger strict scrutiny, but thedecision makes no sense unless that propositionis rejected. As Kennedy noted at the outset of the courts opinion, [i]t is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%. Clearly, in the view of the court, this was not enough, in and of itself, totrigger strict scrutiny by establishingthat race was the predominant factor motivating the legislatures decision to place a significant number of voters within or without a particular district.In fact, the court remandedthe case to the district court for further fact-finding as towhether strict scrutiny applied as to11 of the 12 districts, a remand that would not have been necessary if the setting of the targetautomatically triggered strict scrutiny. This point was not lost on Alito or Thomas, both of whom concurred in the remand decision, but would hold that all these districts must satisfy strict scrutiny.

Particularly noteworthy is that Chief Justice John Roberts joined the majority opinioninBethune-Hill. In 2006, Roberts had joined Justice Antonin Scalias concurrence to the decision inLeague of United Latin American Citizens v. Perry, which had included this language: [W]hen a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation and strict scrutiny is therefore triggered. Both Alito and Thomas quotedthis passage in their concurrencesto the majority opinion inBethune-Hill.Under these circumstances, the fact that,when presented with a clear choicebetween remanding for theplaintiffs to showwhether strict scrutiny applies and remandingforthe stateto show that the redistricting satisfiesstrict scrutiny,Robertschose the formerspeaks volumes.

Likewise, the decision inCooperdoes not indicate that the uncontested evidence that the states mapmakers purposely established a racial target was sufficient, in and of itself, to trigger strict scrutiny. Rather, the courts analysis proceeded to an examination of how the 50-percent-plus racial target actually affected the configuration ofDistrict 1,one of the two districts in question. Justice Elena Kagans opinion noted thatthe mapmaker deviated from the districting practices he otherwise would have followed. For example, Kagan observed that the mapmaker did not respect county or precinct lines. Based on this assessment of the mapmaking process, the court concluded that the announced racial targetsubordinated other districting criteria and produced boundaries amplifying divisions between blacks and whites,and found that that race predominated in the drawing of the district.

Dispelling any doubt about the courts refusalinCooperto adopt the rationale that the setting of the majority-minority target in itself triggered strict scrutiny, Thomas was compelled once again to write a separate opinion, expressing the sentiment found nowhere in the majority opinion that North Carolinas concession that it created the district as a majority-black district is by itself sufficient to trigger strict scrutiny.

It is worth noting that, although the court in bothBethune-HillandCooperunequivocally declined to hold that a plaintiff in a racial gerrymandering case must prove an actual conflict or inconsistency between the drawn lines and traditional districting principles, it nevertheless recognized the subordination of traditional districting principles to racial considerations as a prime factor in its analysis. Indeed, in the course of discussing the other district under consideration in Cooper, District 12, the court notedthat[i]n the more usual case alleging a racial gerrymander … the court can make real headway by exploring the challenged districts conformity to traditional districting principles, such as compactness and respect for county lines.

Twoother issuesin theCooperopinion merit discussion. First, the court rejected the notion that a legislature can defend against a charge of racial gerrymandering byshowing that the redistricting furthers partisan ends, the states sole justification for the lines it drew for District 12. Addressing this argument, the court observed that if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests their action still triggers strict scrutiny. The court then proceeded to uphold the findings of the district court that it was race, not politics, that accounted for District 12s configuration, by looking at record evidence showing that the boundaries were more influenced by racial data than by partisan-affiliation data.

Finally, the court cleared upconfusion caused by language inEasley v. Cromartie, known as Cromartie II, which the state argued compelled a plaintiff to produce alternative maps to prove that it was race, not politics, thatimpelled the line-drawing. The court explained that the language inCromartie IIwas written in a context of a much more equivocal case, and was not meant to establish a categorical rule. A plaintiffs task, Kagan wrote, is simply to persuade the trial court without any special evidentiary prerequisites that race (not politics) was the predominant consideration in deciding to place a significant number of voters within or without a particular district. Once plaintiffs have done so, there is no need for them to jump through additional evidentiary hoops.