Today’s Important Decision in Bethune-Hill

As someone who litigates these cases and has written extensively about racial redistricting, I consider today’s decision a major new precedent with broad implications, not just for racial gerrymandering issues, but for partisan gerrymandering ones potentially as well.  Because I am involved in pending litigation on these issues, I will be cautious about how much I say, but I do not want journalists to get the wrong impression about the significance of this case.

On racial gerrymandering and the Constitution, the Court’s opinion today is more forceful and clear than it has ever been that unconstitutional racial gerrymandering can occur even when a State draws districts that look regular and follow traditional districting principles.  As the Court holds, “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.”  Similarly, “[r]ace may predominate even when a reapportionment plan respects traditional principles.”  Litigants and advocates are going to differ in whether they like the clarity of this principle, but this clarification from the Court is extremely significant.  Lower courts have been in confusion about this very important question, as evident in today’s reversal.  This principle is going to make it significantly easier for plaintiffs to win racial gerrymandering claims.  Conversely, States are not going to be able to move voters around by race without adequate justification, yet claim that they can do so because they nonetheless are following traditional districting principles.

In addition, the Court indicated considerable sophistication about the changing dynamics through which States engage in unconstitutional racial gerrymanders.  As the Court points out, the leading prior cases all involved ones where legislatures had drawn contorted district boundaries for at least some of the district lines.  Now, the Court is beginning to see cases in which legislatures are no longer doing that, yet still using unjustified racial classifications.  As Justice Kennedy writes: “Yet the law responds to proper evidence and valid inferences in ever-changing circumstances, as it learns more about ways in which its commands are circumvented.”  This is a strong signal to lower courts not to apply prior cases formalistically or mechanically, but to ferret out unconstitutional racial gerrymanders that take ever-evolving form.

Moreover, the Court had decided the major precedent leading up to today’s decision, Alabama Legislative Black Caucus (which I argued) by a 5-4 vote.  But the dissenting Justices (Scalia, Alito, Roberts, Thomas) dissented on procedural grounds; it had been unclear how sympathetic they would be to the position of Southern states that have to comply with the Voting Rights Act versus the view that the Constitution sharply constrains the States, even when they purport to comply with the VRA.  Justice Alito has now made clear that, on the merits, he views the Constitution as sharply constraining the States here and would have been in the majority in the Alabama case.  As Justice Thomas puts it in his separate opinion:  “Despite my sympathy for the State, I cannot ignore the Constitutional clear prohibition on state-sponsored race discrimination.”  One might have expected Justice Thomas to take that view, but he too did not reach the merits in the Alabama case.  As an aside, note that in both the Alabama and Virginia cases, the Court is addressing Republican-drawn districting plans.   The fact that such a substantial majority of Justices are prepared to police aggressively the State’s use of race in redistricting is also significant, in light of the 5-4 vote in Alabama.

Finally, there is a direct relationship, potentially, between today’s decision and a central issue in the partisan gerrymandering case from Wisconsin, Whitford v. Gill.  The case is presently on appeal to the Supreme Court.  A crucial issue there is Wisconsin’s position that, because it followed traditional districting principles in drawing its districts, it cannot have created an unconstitutional partisan gerrymander. If the Court applies the same principle in the partisan case as in the race case today and holds that what would otherwise be an unconstitutional partisan gerrymander cannot be immunized merely because the legislature the districts comply with traditional districting principles, that would enormous consequence for the Whitford case on appeal to the Supreme Court.

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