By Marcus Baldori
Associate Editor, Vol. 22
In the coming months, the Supreme Court is expected to clarify its stance on the legal boundaries of racial gerrymandering. In December 2016 the Supreme Court heard oral arguments for Bethune-Hill v. Virginia State Board of Elections; the case will explore whether a requirement that certain districts have a minimum of 55% Black voting population violates the Equal Protection Clause and the Voting Rights Act. The plaintiffs allege that the 55% floor was a scheme to pack black voters into a few districts, thereby diluting minorities’ overall effect on delegate elections in Virginia.
Before the Supreme Court granted cert for this case, the U.S. District Court for the Eastern District of Virginia held that there was no Equal Protection violation because race was a not a predominant factor in the creation of 11 of the 12 challenged state district maps (citing criteria like compactness, contiguity, and incumbency protection). The district court acknowledged that a “racial sorting” violation is independent of intent to dilute minority vote, and focuses only on whether the State has used race as a basis for separating voters. Still, the Court held that the plaintiffs did not make the required showing that the legislature subordinated race-neutral principles to racial considerations in drawing the districts.
For the single district where race was found to be a predominant factor in its drawing, thereby triggering a strict scrutiny analysis; the district court held that there was a compelling state interest in complying with the Voting Rights Act, and therefore the State did not violate the Equal Protection Clause. The Voting Rights Act provides an additional measure to prevent voting discrimination on the basis of race or ethnicity. Specifically, the Supreme Court held in Mobile v. Bolden that a Section 2 Voting Rights Act violation occurs upon the result of a dilution (or “retrogression”) of racial minorities upon the reduction of majority-minority districts. Legislatures have struggled with Section 2 because it requires the creation of majority-minority districts in some circumstances.
A conflict arises when states are required consider race to comply with the Voting Rights Act, but, under the Equal Protection Clause, must also not subordinate race-neutral principals to racial considerations in drawing boundaries. If the State does use racial considerations, it must show strong evidence that it was necessary to comply with the Voting Rights Act.
Democrats have taken a strong stance against the District Court’s ruling, criticizing the ability for legislatures to get away with redrawing based on racial metrics as long as some other grounds are provided. During oral arguments, both Justice Kagan and Justice Kennedy signaled concern: an intentional 55% floor for Black voting population is an admission that race was a significant factor in drawing the districts and should therefore be subject to strict scrutiny. If the Justices fall along their usual political lines, there could be a 4-4 split; but Kennedy’s concern expressed during oral argument points to the possibility of a 5-3 decision for the plaintiffs. However, even if the Supreme Court decides that the 11 districts were drawn with race as a predominant factor, there would still be the question of whether this drawing was necessary to avoid retrogression under the Voting Rights Act.
It is worth noting that Virginia has since relaxed its compliance requirements with the Voting Rights Act, but that the 2011 redistricting will still be analyzed under the antidiscrimination law as it was in 2011.
UPDATE: The Supreme Court has since decided the case by remanding consideration of 11 districts under the proper standard, while affirming the district court’s conclusion to uphold the single district where race was a predominant factor in its drawing.
 Josh Gerstein, Supreme Court Takes Case Claiming Racial Gerrymandering in Virginia, Politico (June 6, 2016), http://www.politico.com/blogs/under-the-radar/2016/06/virginia-redistricting-supreme-court-223946.
 Josh Gerstein, Supreme Court Struggles with Pair of Race and Redistricting Cases, Politico (December 5, 2016), http://www.politico.com/blogs/under-the-radar/2016/12/supreme-court-redistricting-virginia-north-carolina-232206?jumpEdition=.
 Redistricting in Virginia, Ballotpedia (Feb. 18, 2017), https://ballotpedia.org/Redistricting_in_Virginia#State_legislative_redistricting.2C_2010.
 Adam Liptak, Justices Wrestle with Role of Race in Redistricting, The New York Times (Dec. 5, 2016), https://www.nytimes.com/2016/12/05/us/politics/supreme-court-redistricting-race.html?_r=0.
 Bethune-Hill v. Virginia State Bd. of Elections, 141 F.Supp.3d 505, 513 (E.D. Va. 2015).
 Id. at 513.
 Id. at 545.
 Liptak, supra note 4.
 Section 2 of the Voting Rights Act, The U.S. Dept. of Justice (Aug. 8, 2015), https://www.justice.gov/crt/section-2-voting-rights-act#sec2.
 Bethune-Hill, 141 F.Supp.3d at 516.
 Id. at 522.
 Gerstein, supra note 2.
 Bethune-Hill, 141 F.Supp.3d at 547.
 See Adam Liptak, Supreme Court Returns Virginia Voting Case to Lower Court, The New York Times (March 1, 2017), https://www.nytimes.com/2017/03/01/us/politics/supreme-court-virginia-house-delegates-gerrymandering.html?_r=0.
The views expressed herein represent the views of the author only.