US Supreme Court remands redistricting case to determine if state improperly used race as a basis for redistricting lines

Bethune-Hill v. Virginia State Bd. of Elections, No. 15-680 (U.S. March 1, 2017)

In this U.S. Supreme Court redistricting case, the Court held the lower courts misapplied the standard for determining whether race was an impermissible factor in redrawing district lines.

This case addresses whether the Virginia state legislature’s consideration of race in drawing new lines for 12 state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment after the 2010 census. Certain voters challenged the new districts as unconstitutional racial gerrymandering.  The trial court panel held 11 of the 12 districts did not deviate from traditional criteria so were constitutional. It also held the 12th, did deviate, but the state had a compelling interest which was narrowly tailored. It is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%. In order to make the 12th district work, non-traditional criteria were used and justified as not wanting to dilute the black vote and to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated §5 of the Voting Rights Act of 1965.  The citizen’s suit was dismissed.

The Supreme Court went through a lengthy analysis. It first held the district court used an incorrect legal standard regarding the first 11 districts. The proper inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications that the legislature could have used but did not. A legislature “could construct a plethora of potential maps that look consistent with traditional, race-neutral principles, but if race is the overriding reason for choosing one map over others…” unjustified race considerations may be present.  The trial court erred in considering the legislature’s racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria.  The “ultimate object of the inquiry is the legislature’s predominant motive for the district’s design as a whole, and any explanation for a particular portion of the lines must take account of the districtwide context. A holistic analysis is necessary to give the proper weight to districtwide evidence, such as stark splits in the racial composition of populations…”  The Court remanded the determination of the first 11 districts to the trial court to reconsider in light of the Court’s rulings. However, as to the 12th district, the Court held Virginia had a compelling interest to comply with the Voting Rights Act applicable at the time. The State does not have to show its action of race consideration was actually necessary to avoid a statutory violation, but only that the legislature had “ ‘good reasons to believe’ ” its use of race was needed in order to satisfy the Voting Rights Act.  Virginia established its use of race for the 12th district was narrowly tailored and necessary under §5, and the result reflected the good-faith efforts of legislators to achieve an informed bipartisan consensus.  The Court affirmed the dismissal as to the 12th district and remanded the remaining 11.

Justice Alito concurred in part and in the judgment. He concurred as to the 12th district because he believed the law applicable should be the case law from 2012 and not to consider the Court’s holding in Shelby County v. Holder, 570 U. S. ___ (2013).  He concurred with the remand of the 11 districts but believes strict scrutiny should apply to them.

Justice Thomas concurred in the judgment but dissented in part. He concurred with remanding the 11 districts and would hold they must satisfy strict scrutiny requirements. As to the 12th district, he disagrees Virginia satisfied a strict scrutiny analysis.  Since he has previously held §5 of the Voting Rights Act is unconstitutional, using §5 as a reason to consider impermissible grounds does not qualify as a compelling interest. He also believed Virginia did not narrowly tailor its application. And while he sympathizes with the legislature and appears to believe they were trying to comply with §5, he equates the action to “state sponsored race discrimination.”

If you would like to read this opinion click here.  Justice Kennedy delivered the opinion of the court, in which Justices Roberts, Ginsburg, Sotomayor, and Kagan JJ., joined.  Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.