New York Times

Supreme Court Returns Voting District Case in Virginia to a Lower Court

March 2, 2017

by Adam Liptak

WASHINGTON — The Supreme Court on Wednesday gave Virginia Democrats a fresh chance to challenge parts of the legislative map for the state’s House of Delegates.

The decision tried to bring some clarity to the tangled question of what role race can play in drawing voting districts. But the Supreme Court decided very little, leaving it to the trial court to apply a slightly refined definition of racial gerrymandering.

“The upshot of all of this is that not much has changed with these cases,” Richard L. Hasen, a law professor at the University of California, Irvine, wrote in a blog post. “The fight will be over the details and application to particular cases.”

Marc E. Elias, a lawyer for the challengers in the case, disagreed, calling the decision a “major victory” that will help Democrats.

The case, Bethune-Hill v. Virginia State Board of Elections, No. 15-680, concerned a dozen voting districts drawn after the 2010 census, each with at least a 55 percent population of black residents of voting age.

The Supreme Court has said race cannot be the predominant reason in creating legislative districts.

In 2015, a divided three-judge panel of Federal District Court in Richmond, Va., upheld 11 of the challenged 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.

That was the wrong approach, Justice Anthony M. Kennedy wrote for the majority. “The racial predominance inquiry concerns the actual considerations that provided the essential basis for the lines drawn,” he wrote, “not post hoc justifications the legislature in theory could have used but in reality did not.”

Justice Kennedy noted that the case had some curious features.

The challenged map was enacted, he wrote, “with broad support from both parties and members of the Black Caucus.” Only years later, he said, did voters file a lawsuit asserting a violation of the Constitution’s equal protection principles, saying that lawmakers had packed too many black voters into the districts.

In assessing those challenges, Justice Kennedy wrote, the trial court identified “no fewer than 11 race neutral redistricting factors.” He called that kind of analysis too malleable.

“By deploying those factors in various combinations and permutations, a state could construct a plethora of potential maps that look consistent with traditional, race-neutral principles,” Justice Kennedy wrote. “But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”

Justice Kennedy did not say the challengers would win under his less rigid standard. “The district court,” he wrote, “is best positioned to determine in the first instance the extent to which, under the proper standard, race directed the shape of these 11 districts.”

The Supreme Court affirmed one part of the trial court’s ruling, concerning a single district, which the trial court had upheld even after finding that race played the dominant role in drawing it. The trial court said the district was justified by an attempt to comply with the Voting Rights Act, which forbade the reduction of minority voters’ ability to elect candidates of their choice.

Justice Kennedy endorsed that reasoning. “The record here supports the legislature’s conclusion that this was one instance where” the 55 percent target “was necessary for black voters to have a functional working majority,” he wrote.

Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined all of Justice Kennedy’s opinion.

Justice Samuel A. Alito Jr. largely agreed with the majority, though he said he would subject the 11 districts to a demanding level of scrutiny.

In a partial dissent, Justice Clarence Thomas elaborated on Justice Alito’s point and said the court should have struck down the lone district it upheld. “Despite my sympathy for the state,” he wrote, “I cannot ignore the Constitution’s clear prohibition on state-sponsored race discrimination.”