The Supreme Court this morning noted probable jurisdiction in the Bethune-Hill case, raising racial gerrymandering claims in state legislative elections in Va. The SCOTUSBlog page is here.

Just a few weeks ago, the Court dismissed on standing grounds a racial gerrymandering case involving Va. congressional districts. As I explained a few weeks ago, by deciding the case on standing grounds, the Court was able to avoid saying anything new about the racial gerrymandering cause of action it revived in a surprising way last term in a case from Alabama.  (See my analysis in Racial Gerrymandering’s Questionable Revival, part of an Alabama Law Review symposium on the 50th Anniversary of the Voting Rights Act.)

In the congressional case, the court found a racial gerrymander and it was objecting congressional candidates who appealed. In the new state case, the lower court found there was no racial gerrymander. Here are the questions presented:

(1) Whether the court below erred in holding that race cannot predominate even where it is the most important consideration in drawing a given district unless the use of race results in “actual conflict” with traditional districting criteria; (2) whether the court below erred by concluding that the admitted use of a one-size-fits-all 55% black voting age population floor to draw twelve separate House of Delegates districts did not amount to racial predominance and trigger strict scrutiny; (3) whether the court below erred in disregarding the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts; (4) whether the court below erred in holding that racial goals must negate all other districting criteria in order for race to predominate; and (5) whether the court below erred in concluding that the General Assembly’s predominant use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest.