Here’s a guest post from Mike Parsons:
The Supreme Court today agreed to hear Va. House of Delegates v. Bethune-Hill (“Bethune-Hill II”) and directed the parties to brief whether Appellants have standing. This racial gerrymandering case challenging 12 Virginia House Districts (now winnowed to 11) returns to the Court barely a year-and-a-half after the Court remanded Bethune-Hill v. Va. State Bd. of Elections (“Bethune Hill I”).
The standing question arises because the appeal is brought by the Virginia House of Delegates and the Speaker of the House—Intervenors in the action below. Rather than defend the law, the Virginia Attorney General (AG) has moved to dismiss the appeal after determining that continued litigation “would not be in the best interest of the Commonwealth” (given the court’s extensive factual findings, the time and expense of appeal, the need to begin preparing for the state’s primary elections in June 2019, and the fact that the map would only be in place for one more election before the 2020 census sparks a new round of redistricting). The AG argues (1) there is no Virginia state law authorizing the House to represent the State’s interests, and (2) while Intervenors may have participated in the Bethune-Hill I defense, this is “fundamentally different from the ability to initiate an appeal to challenge [the legal status quo].”
On the merits, Appellants raise a host of questions (six in all, with sub-parts to boot) challenging whether the court conducted a sufficiently “holistic” predominance analysis, whether the court erred in its credibility and evidentiary determinations, and whether the 11 challenged majority-minority districts can be considered narrowly tailored. While some (perhaps all) of these questions would seem subject to clear-error review (and Appellees argue as much), the Court has played fast-and-loose with its standards of review in past redistricting cases (as Justice Thomas noted in his Cooper v. Harris concurrence), and we may see the Court do so again here.
Why might the Court be interested in this case? A couple possibilities:
(1) Boundary-Setting: Roberts and Alito have shown extraordinary deference to legislators in this area (too much, one might argue), and Appellants harp on this point in discussing both predominance (i.e., how exhaustive must a court’s findings be to justify holding race predominated) and narrow-tailoring (i.e., how much analysis must a legislature do to show it had “good reasons” to believe its use of race was necessary). The conservative wing of the Court may see this case as a good vehicle to emphasize just how reticent courts should be to step in and police these boundaries generally. (Though, as in Cooper, Thomas’s view may diverge from the conservatives on this issue.)
(2) Revisiting Predominance: The “holistic” analysis that Appellants claim Bethune-Hill I requires courts to undertake is unwieldy (to say the least). In response, Appellees argue that predominance “does not require the court to explicate every jot and tittle of a district but, instead, to examine the broader context of each district, including its overall demographics and the principles that drove its configuration.” Appellees seem right to argue that Bethune-Hill I’s “holistic” analysis does not demand the impossible; however, the Court they face today is not the Court they faced eighteen months ago.
Following Bethune-Hill I, I argued that litigants should be on the lookout for the Court to shift away from the nuanced, fact-intensive view of predominance that Kennedy held (where a district violates the Constitution when the “essential basis” for the lines drawn is race) and for the Court to shift towards the blunter, intent-alone view of predominance that Alito & Thomas hold (where a district violates the Constitution when it is created for a “racial purpose”). The latter view risks making every district drawn for VRA-compliance purposes presumptively unconstitutional.
Unfortunately, Bethune-Hill II may give the Court an opportunity to “clarify” how it views predominance—and perhaps “simplify” it in a dangerous way. After all, Roberts and Kennedy joined Alito’s opinion in Cooper v. Harris (which subtly elides the difference between these two interpretations, see Slip Op. 3, n.1), and Gorsuch joined Thomas’s opinion in Abbott v. Perez (where Thomas reiterated his long-held view that the VRA does not apply to redistricting at all). Thus, Kavanaugh appears to be the only member of the Court who has yet to express an opinion on this key question.
Bethune-Hill I dealt with a critical interpretive question at the intersection of the Fourteenth Amendment and the Voting Rights Act. With Kavanaugh and Gorsuch weighing in on the case for the first time this term (and Kennedy gone), we may soon know where the future of racial gerrymandering jurisprudence is heading.