Breaking and Analysis: Supreme Court Decides Bethune-Hill, the VA Racial Gerrymandering Case

The Supreme Court, in an opinion by Justice Kennedy (joined by the Court’s liberals and Chief Justice Roberts) has affirmed in part and reversed in part the Virginia racial gerrymandering case, Bethune-Hill v. Va. State Board of Elections. Justice Alito concurred in part and concurred the judgment and Justice Thomas concurred in part and dissented in part.

The opinion is an important technical case about how to apply the standards racial gerrymandering cases, but it breaks little new ground, and this case itself is likely to be back up to the Supreme Court for further review. It is more of a punt than a major decision.

We are still awaiting the decision in the other racial gerrymandering case argued that day (out of North Carolina), McCrory v. Harris. That case presents a more difficult question about how to deal with the problem of the overlap of race and party concerns, especially in the South (and the subject of my draft paper, mentioned below.)

Bethune Hill  concerns racial gerrymandering cases which have existed since the Supreme Court created the claim in Shaw v. Reno (1993) and modified by Justice Kennedy’s decision in Miller v. Johnson (1995). The claim is one of separating voters on the basis of race without adequate justification. It is not a vote dilution case, and the Court confirmed today (with Justice Kennedy relying heavily on Miller) that the harm is one of separating voters on the basis of race:

The harms that flow from racial sorting “include being personally subjected to a racial classification as well as being represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group.” Alabama, 575 U. S., at ___ (slip op., at 6) (alterations, citation, and internal quotation marks omitted). At the same time, courts must “exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race.” Miller, 515 U. S., at 916. “Electoral districting is a most difficult subject for legislatures,”

The three-judge trial court had found that 11 of the 12 challenged districts were not racial gerrymanders, but a 12th legislative district, District 75 was. On District 75, the lower court found that race was the predominant factor and that a 55% rate of Black Voting Age Population (BVAP) was narrowly tailored to meet the state’s compelling interest in complying with the (now-moribund) Section 5 of the Voting Rights Act.

On the 11 districts, the Supreme Court reversed and held that the trial court applied the wrong standard as to the relevance of whether or not there was a gerrymander. The Court today said it is not necessary for challengers to prove that the state failed to comply with traditional redistricting principles:

For these reasons, a conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering. Of course, a conflict or inconsistency may be persuasive circumstantial evidence tending to show racial predomination, but there is no rule requiring challengers to present this kind of evidence in every case.

So the case goes back for reconsideration by the district court on these districts to reconsider without this burden on plaintiffs. It is not clear if this leads to any new results.

On District 75, the state had conceded that compliance with Section 5 constituted a compelling interest, and the question was whether a 55 percent BVAP was narrowly tailored to comply with that interest. The Court said that it was, and Justice Alito in his separate opinion said that it was important to emphasize that the state had made this concession. (That is, the Court did not confirm that compliance with the Voting Rights Act could defeat a racial gerrymandering claim.)

Justice Thomas, in his partial dissent, restated his long-held belief (with Justice Scalia) that all race conscious redistricting triggers strict scrutiny. He also believed that on District 75, the Court was not strict enough on the narrow tailoring analysis and would have reversed.

So the upshot of all of this is that not much has changed, with these cases, and there is no rethinking, among liberals or conservatives on the Court, of this cause of action. The fight will be over the details and application to particular cases.

That’s too bad, as I think the entire cause of action is nonsensical. Here’s my paper on that, which I’m presenting tomorrow at the University of Texas Faculty colloquium: Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases.

[This post has been updated.]

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