New York Times

Justices Wrestle With How to Disentangle Race From Partisanship in Redistricting

December 6, 2016

by Adam Liptak

In a pair of spirited arguments on Monday, the Supreme Court returned to the question of what role race may play in drawing legislative maps.

The two cases, from Virginia and North Carolina, were the court’s latest attempts to solve a constitutional puzzle: how to disentangle the roles of race and partisanship when black voters overwhelmingly favor Democrats. The difference matters because the Supreme Court has said that only racial gerrymandering is constitutionally suspect.

“If it’s politics, it’s fine,” Justice Elena Kagan said, summarizing the basic distinction. “If it’s race, it’s not.”

The problem, she said, is that “race and politics correlate.”

Paul D. Clement, who represented state officials in both cases, said that it was very easy to ascribe a racial motive to what was, in fact, permissible partisan behavior.

On the issue of adding voters to a congressional district, he said, “Just the fact that they brought in a bunch of African-Americans because they were trying to bring in Democrats is about as interesting as the sun coming up in North Carolina, because everybody agrees there’s about a 90 percent correlation between race and partisan identity.”

If there was consensus among the justices, it was that the legal questions were as difficult as they were important. The law in this area is “very, very complicated,” Justice Samuel A. Alito Jr. said, creating “an invitation to litigation.”

The Virginia case, Bethune-Hill v. Virginia State Board of Election, No. 15-680, concerned 12 districts for the state’s House of Delegates drawn after the 2010 census, each with at least a 55 percent population of blacks of voting age. Voters in those districts sued, saying that lawmakers had run afoul of the Constitution by packing too many black voters into the districts, diminishing their voting power.

A divided three-judge panel of the Federal District Court in Richmond, Va., upheld 11 of the districts because, it said, race had not been the primary factor in drawing them. Since the districts could be justified under traditional redistricting criteria like compactness, contiguity, incumbency protection and political considerations, the court said, race could not have been the predominant reason for drawing them.

The court upheld the remaining district even after finding that race had played the dominant role in drawing it, saying that it was justified by an attempt to comply with the Voting Rights Act, which forbade the diminishment of minority voters’ ability to elect candidates of their choice.

Marc E. Elias, a lawyer for the challengers in both cases, said the District Court had been wrong to endorse “a one-size-fits-all, 55 percent racial floor.” He said the court had conferred “a sort of judicial immunity to visually appealing districts that nevertheless were drawn with the predominant purpose of placing voters within and without based solely on the color of their skin.”

Justice Kagan agreed there was “something a bit strange” about the legislature’s decision to pick a uniform target of 55 percent.

“It sort of defies belief,” she said, that “you could pick a number and say that applies with respect to every majority-minority district.”

Mr. Clement said the challenged legislative maps were in fact “a bipartisan success story” and that “in the universe of possible numbers, 55 percent is about the best number you could come up with.”

Several justices said the District Court may have applied the wrong standard. Justice Anthony M. Kennedy asked whether lawmakers could choose one of two otherwise defensible districts “because it has more voters of a certain race, black, Latino, white, whatever.”

“Is that a predominant motive based on race?” Justice Kennedy asked Mr. Clement, who said no.

Justice Kennedy responded, “That’s what the District Court says, and I have problems with that.”

At the same time, some justices appeared wary of returning the case to the lower court for reconsideration under a more refined standard that might nonetheless generate the same results.

The North Carolina case, McCrory v. Harris, No. 15-1262, concerned two congressional districts. The North Carolina Supreme Court upheld them, but a three-judge panel of the Federal District Court in Greensboro, N.C., struck them down.

Several justices expressed uneasiness about the conflicting rulings, but it was not clear how the state decision would affect the Supreme Court’s review of the federal one.

In 2015, in Alabama Legislative Black Caucus v. Alabama, the Supreme Court cautioned lower courts not to be “too mechanical” in maintaining existing percentages of black voters. Justice Stephen G. Breyer, the author of the majority opinion in the case, said on Monday that he had hoped the decision “would end these cases in this court, which it certainly doesn’t seem to have done.”

The difficulty, Justice Breyer suggested, was rooted in historical wrongs and was close to insoluble.

What was at stake, he said, was “the constitutional interest in seeing that minorities have representation in reality in the legislatures.”

He explained the historical background.

“There were many states that had many black citizens and had no black representation,” he said, leading to the creation of majority-minority districts. “And the problem is, how does the law permit the creation of that, and at the same time, prevent the kind of packing that might appear in other cases, which is gerrymandering?”

“No one, I think, has a good answer to that question,” Justice Breyer said. “There is just slightly better, slightly worse.”