Race and the Architecture of Voting Districts: Bethune-Hill v. Virginia State Board of Elections

Redistricting – the redrawing of state voting district boundaries every ten years – is intended to ensure that state legislatures fairly represent their voters.  Instead, in a practice called gerrymandering, state lawmakers often architect voting districts that will favor the election of incumbents and their political parties.  Gerrymandering is illegal when it is motivated by racial considerations – for instance, when lawmakers “pack” minority voters into a few districts in order to dilute their voting power across the state.  Yet how states redesign their voting districts – and, importantly, how courts should evaluate racial gerrymandering claims and legislatures should consider race in redistricting – is a tangled area of the law.

Last week, in a 7-1 decision, the Supreme Court provided some clarity on racial gerrymandering.  In Bethune-Hill v. Virginia State Board of Elections, African American voters challenged Virginia’s redistricting plan for 12 legislative districts as improper racial gerrymanders.  Specifically, they challenged Virginia’s requirement that each of those districts have a black voting-age population of 55%, which they claimed packed black voters in these districts and diluted their voting power in other ones.

Despite the near-unanimity of the opinion, the justices avoided deciding whether most of the voting districts at issue were unconstitutional racial gerrymanders.  Instead, with regards to 11 of the districts, the Court ruled on the narrower issue of whether the lower court had applied the proper standard for racial gerrymandering, and then remanded the case.  Election law experts have therefore disagreed on the impact of the case.  The decision tracks the Court’s apparent trend of reaching middle-ground rulings until a ninth justice is appointed.

Virginia designed the voting districts at issue in Bethune-Hill following the 2010 Census.  At the time, the Voting Rights Act required states with a history of voting discrimination to ensure that redesigned voting maps would not result in the retrogression of a minority group’s ability to elect its preferred candidates.  The delegate leading the redistricting efforts therefore identified a dozen “minority-majority districts” – districts where he felt blacks should compose a majority of the voter population.  He and other legislators proposed the 55% floor in those districts to comply with the Voting Rights Act.  (The Supreme Court has since gutted the relevant portions of the Voting Rights Act in Shelby County v. Holder.)

Black voters in each of these majority-minority districts subsequently challenged Virginia’s redistricting plan as an unlawful racial gerrymander in violation of the Equal Protection Clause.  What makes this case tricky is that the districts appear to fit traditional redistricting criteria.  For example, some of the districts’ lines are compact or drawn around natural geographical features.  By contrast, an extreme example of a voting district where traditional criteria were compromised is the North Carolina voting district found to be unconstitutional in Shaw v. Reno; while the district was over 150 miles long, in some places it was as narrow as an interstate highway.  Furthermore, the Virginia legislature claims that it considered race in order to protect black voters.

At the district court level, a divided three-judge panel upheld Virginia’s redistricting plan as constitutional.  In Miller v. Johnson, the Supreme Court stated that, for a racial gerrymandering challenge, challengers must show that race was the “predominant” factor motivating the legislature’s district design.  If shown, the court then must apply the highest level of scrutiny, evaluating whether the state had a compelling government interest and whether the district design was narrowly tailored to achieve that interest.

Applying Miller, the district court held that the voters had not shown that race was the predominant factor motivating the legislature’s design of 11 of the 12 challenged districts. The decision hinged on the court’s conclusion that race predominates only when there is “an actual conflict” between the challenged plan and traditional redistricting criteria.  In other words, the court stated that a racial gerrymandering claim is viable only when lawmakers compromise traditional redistricting criteria.  Even though Virginia legislators designed the districts to ensure that 55% of the voters were black, the lower court found that 11 of the districts conformed with traditional criteria and thus concluded that race could not be the predominant factor motivating the districts’ design.  With respect to the twelfth challenged district, the court found that race predominated, but Virginia satisfied strict scrutiny because the district’s design was narrowly tailored to comply with the Voting Rights Act.

The Supreme Court found that the district court’s standard for whether race predominated in the eleven districts, based on an “actual conflict,” was invalid.  However, it affirmed the ruling that the twelfth district satisfied strict scrutiny.

Justice Kennedy’s opinion for the majority explained that challengers need not show an “actual conflict” between the chosen redistricting plan and traditional redistricting criteria.  A plan can appear to have a traditional design and yet still be designed on the basis of “unjustified racial classifications.”  Instead, courts should look at the considerations in designing the districts, and “not post hoc justifications [that] the legislature in theory could have used but in reality did not.”   Further, courts must engage in a “holistic analysis” and “must take account of the dictrictwide context.”

In considering the constitutionality of the twelfth district, the Court also explained that states can have some latitude in considering race as they design voting districts.  The Court assumed, without concluding, that the state’s interest in obeying the Voting Rights Act was compelling.  States don’t need to figure out “precisely what minority population” the Voting Rights Act requires.  Indeed, lawmakers may set fixed racial targets, such as the 55% target that Virginia used.  What matters is that states need “good reasons” to believe that their targets were necessary.  The Court concluded that, for at least one district, Virginia had good enough reasons.

The Court seemed careful to note that it was not announcing new rules about racial gerrymandering.  Justice Kennedy stated that the “holding in this case is controlled by precedent.”

Still, election law experts disagree about the consequences of Bethune-Hill.  At SCOTUSblog, Amy Howe notes that because the Court remanded the case back to the district court, the dispute over these voting districts may remain unsettled as Virginia holds elections in November, and will likely result in another appeal to the Supreme Court.  Professor Noah Feldman suggests that this case may signal greater compromise between liberals and conservatives on the issue of redistricting moving forward.  However, Professor Richard L. Hasen claims that now the “fight will be over details and application to particular cases.”

On the same day as Bethune-Hill, the Court heard McCrory v. Harris, a challenge to the design of two congressional districts in North Carolina as illegal racial gerrymandering.  The Court now has an opportunity in that decision – involving what the lower court called a “textbook example of racial gerrymandering” – to more definitively refine the law or push it in a particular direction.  Additional guidance for racial gerrymandering would be useful before states begin the next iteration of redistricting, which will take place after the 2020 Census.

 

 

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Rebecca Shafer is a 2L at Harvard Law School. At HLS, she is an online content editor with CR-CL, a member of the Board of Student Advisers, and a student advocate in the Veterans Law and Disability Benefits Clinic. Before law school, Rebecca managed a fellowship program for journalists and scholars at the think tank New America. Prior to that, she taught middle school reading for three years through Teach For America. She holds a B.A. in English and creative writing from the University of Michigan.

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