New York Times

Justices Hear Arguments on Devising District Maps

March 22, 2016

by Adam Liptak

WASHINGTON — The Supreme Court wrestled on Monday with the role race may play in drawing legislative maps.

The case was the court’s latest attempt to solve a constitutional puzzle: how to disentangle the roles of race and partisanship when black voters overwhelmingly vote for Democrats. The difference matters because theSupreme Court has said that only racial gerrymandering is constitutionally suspect.

The question in Monday’s case, Wittman v. Personhuballah, No. 14-1504, was whether lawmakers in Virginia had run afoul of the Constitution by putting too many black voters into an oddly shaped district, diminishing their voting power.

The court addressed a similar question last year in Alabama Legislative Black Caucus v. Alabama. By a 5-to-4 vote, with Justice Anthony M. Kennedy and the court’s four more liberal members in the majority, the court indicated that the Alabama State Legislature had relied too heavily on race in its 2012 state redistricting by maintaining high concentrations of black voters in some districts.

Monday’s argument, before the eight justices who remain after Justice Antonin Scalia’s death last month, seemed to be headed for a similar outcome.

Chief Justice John G. Roberts Jr. at one point tried to boil down the case’s central question. “If race and partisanship are coextensive, which one predominates?” he asked a lawyer for the voters who had challenged the voting district and won before a three-judge panel of the Federal District Court in Richmond.

“We would lose if it’s a tie, but in this case there is no tie,” said the lawyer, Marc E. Elias.

Virginia had defended the legislative map but switched sides in the Supreme Court. Justice Samuel A. Alito Jr. suggested that a change in administrations might have played a role in the state’s evolving litigation strategy. Stuart A. Raphael, the state’s solicitor general, said that was not so.

Mr. Raphael added that the state would ordinarily resist “officious intermeddlers” seeking to intervene in a case to press the position it had abandoned. But he said Republican legislators who claimed to have been hurt by a court-ordered plan that replaced the legislative map were entitled to intervene.

“Are we happy about it?” he said. “No.”

Justice Sonia Sotomayor said she doubted that the legislators had suffered the sort of direct and concrete injury that gave them standing to sue. If they had standing, she added, so would countless politicians. “Every time your district is changed and you believe it hurts you, you have a right to go to court?” she asked.

Michael A. Carvin, a lawyer for the legislators defending the legislative map, responded that at least one Republican representative, J. Randy Forbes, was plainly injured by the court’s plan, which increased the number of black voters in his district. Indeed, Mr. Forbes has decided to run in a different district.

“They turned a district that he had easily won for 16 straight years into a 60 percent Democratic district,” Mr. Carvin said of the lower court’s plan.

Justice Sotomayor was also skeptical of the shape of the legislative district the lower court had struck down, as it had stretched and hopscotched from Richmond to Hampton Roads. “It’s contiguous only by water, not by land,” she said.

Chief Justice Roberts seemed particularly troubled by the difficulty of discerning a legislature’s motives. “Let’s say you have 10 percent of the legislators say this is because of race,” he said. “Ten percent say it’s because of partisanship, and 80 percent say nothing at all. What is the motive of that legislature?”

The chief justice asked the same question of each of the four lawyers who argued on Monday, including Ian H. Gershengorn, a lawyer for the federal government who appeared in support of the voters who had challenged the legislative map.

“I will give you a chance to answer the question I asked each of the others,” the chief justice said, to laughter. “I wouldn’t want to deprive you of that opportunity.”

Mr. Gershengorn responded that “it’s obviously a difficult question,” but that there were good indications that race had played an impermissible role.

Justice Scalia’s chair, draped in black since his death on Feb. 13, was missing on Monday, and most of the justices took new places on the bench. Justice Sotomayor, who had been on the audience’s far left, was, for instance, on its far right. But not everyone had adjusted.

“Counsel, I’m over here,” Justice Sotomayor said at one point, helping a confused lawyer.