Argument preview: Virginia racial gerrymandering case returns to Supreme Court

The issue of gerrymandering will be front and center at the Supreme Court in March. On March 26, the justices will tackle two of the highest-profile cases of the term, involving partisan gerrymandering – the idea that state officials went too far in considering politics when redistricting, by drawing maps that favor one political party at another’s expense. But first, on March 18, the justices will once again tackle another thorny issue: accusations of racial gerrymandering, the idea that legislators relied too much on race during redistricting.

The events giving rise to Virginia House of Delegates v. Bethune-Hill began back in February 2011, when Virginia’s General Assembly received new data from the 2010 census and started to draw a new map for the state’s House of Delegates. The final map included 12 districts in which 55 percent of the voters were African-American.

The state legislature adopted the map, and Virginia’s governor approved it. At the time, because Virginia had a history of voting problems, it was also required by federal voting laws to obtain federal approval before changing its maps – a process known as “preclearance” – which it did.

But residents of those districts went to court, arguing that the districts were the product of unconstitutional racial gerrymandering. In particular, the challengers alleged, African-American voters had been illegally packed into the districts, diluting their voting strength in nearby districts and making those districts more hospitable to Republicans.

The House of Delegates stepped in to defend the law, and a federal district court ruled against the challengers, who appealed to the Supreme Court. (Redistricting cases are among the small set of cases with an automatic right of appeal to the Supreme Court.) In 2017, the Supreme Court ruled that the district court had applied the wrong legal standard to the challengers’ claims. The Supreme Court agreed that one of the 12 districts did not violate the Constitution, but it ordered the lower court to take another look, this time using the correct standard, at the other 11 districts.

When the district court reconsidered the case, the court found that race had been the main consideration used to draw each of the 11 remaining districts. Because the legislature had not shown that it needed to aim to have the same percentage of African-American adults in each of the “vastly dissimilar” 11 districts to comply with federal voting-rights laws, the district court concluded, the districts violate the Constitution. This time, the House of Delegates appealed to the Supreme Court, which agreed to hear the case last fall.

There are two main questions in the case. The first issue, which the justices asked both sides to brief, is whether the House of Delegates has a legal right to appeal – known as standing – to the Supreme Court. Because the state officials who were the defendants in the lawsuit did not appeal, the justices would not be able to decide the merits of the case if they determined that the legislature does not have standing.

Virginia Solicitor General Toby Heytens, representing the state officials, argues that the legislature does not have standing. Under state law, he tells the justices, the state’s attorney general – not the legislature – is responsible for representing the state. In this case, Heytens stresses, after several years of expensive litigation, the attorney general decided that the best course of action was not to appeal, but instead to move forward and come up with a new plan that fixes the problems before the 2019 election. Although the legislators may not agree with that decision, Heytens argues, they don’t have the legal power to override it.

The House of Delegates counters that the legislature both created the redistricting plan and defended it in the lower court. Indeed, the House of Delegates notes, the legislature – with the blessing of state officials – also defended the districts during the first round of litigation in the Supreme Court. For the state’s attorney general to argue now, after “years of sitting on the sidelines,” that only he can decide whether to appeal the lower court’s decision to the Supreme Court is “gamesmanship of the worst sort.”

But the challengers, along with the state officials and the federal government, push back. The fact that the legislature was allowed to defend the plan in the lower court does not mean that the legislature has a legal right to appeal to the Supreme Court. To enter the case, they argue, the legislature only needed to have an interest in the case. However, to have the right to appeal, the legislature needs to show an injury from the lower court’s ruling – which it can’t do.

From the House of Delegates’ perspective, it clearly been injured: The district court ordered it either to draw new maps quickly or to hand over the power to draw new maps to a court-appointed expert.

The challengers reject this argument. The legislature was not injured when the lower court struck down the map and ordered it to draw a new one, they contend; that is what “courts routinely do.” To the extent that the legislature is arguing that the court took over its role by having an expert draw the new map, they continue, the legislature has only itself to blame: The court gave the legislature a chance to draw a new map, but the legislature didn’t act.

The second question before the justices is whether the 11 districts are indeed unconstitutional racial gerrymanders.

Defending the 11 districts, the House of Delegates explained that when it drew the map, it was operating under “extraordinary time pressure.” Virginia holds its state elections in odd-numbered years, which means that the legislature only had about six weeks after the 2010 census data was released, in early 2011, to “analyze the data, receive public input, collect requests from incumbents, make countless discretionary decisions about how to conduct the map-drawing process, and then” actually draw the map – which needed to be approved by the legislature and the governor and precleared by DOJ in time for the 2011 elections.

The House of Delegates acknowledges that it considered race when it drew the districts at the heart of this case. Indeed, it notes, it had to do so, because the Voting Rights Act prohibited Virginia from changing its map unless the state could show that the new map wouldn’t make it more difficult for minority voters to elect the candidate of their choice. Therefore, the legislature explains, it set a target of 55-percent African-American voters in all 11 districts to maintain similar levels in the majority-minority districts “that were already above or near that number” – allowing it to comply with both the VRA and “traditional districting criteria.” Therefore, the legislature stresses, although race was a factor, it was not the primary consideration.

Even if race had been the primary consideration, however, the legislature continues, the map is still constitutional as long as the legislature had a good reason to believe that the VRA required it to consider race. This, the legislature asserts, allows it to avoid a Catch-22 scenario, in which a map is an unconstitutional racial gerrymander if it puts too many minority voters in a district, but violates the VRA if it puts too few minority voters there.

In this case, the legislature adds, there were good reasons for the legislature to think that each district should be made up of over 50 percent African-American voters, because almost all the districts already had similar populations; under the VRA, the legislature needed to avoid drawing lines that would lower that rate. And even if it arguably could have used a slightly lower target, the legislature suggests, it is enough that it believed in good faith that it was required to use that number to comply with the VRA.

The legislature launches a broader attack on the district court’s decision striking down the 11 districts, calling it a “clear threat to the core sovereign function of redistricting” that “all but eliminates what little breathing room legislatures have to balance the competing demands of the VRA and the Constitution.” Race will inevitably play a role in redistricting, the legislature emphasizes. The only question is “how race should be used, and who should consider it in drawing maps—popularly-elected and politically-accountable legislators or Article III courts and out-of-state special masters.”

The federal government backs the challengers in arguing that the legislature should not be allowed to appeal. However, it tells the justices that if the Supreme Court does reach the merits, it should send the case back for another look because the district court “again failed to perform a holistic analysis of each individual district.” For example, the government observes, the district court attributed “across-the-board significance” to the legislature’s target of having 55 percent of the voters in each district be African-American, without looking at what effect that threshold actually had on a particular district’s boundaries.

The challengers defend the lower court’s decision striking down the 11 districts as “a straightforward application” of the Supreme Court’s recent decisions. There is no dispute, they say, that the lines for the districts were drawn with an eye toward guaranteeing that at least 55 percent of each district’s voters would be African-American. Getting to that target was “no easy feat,” they posit; instead, the legislature was required to put aside traditional redistricting criteria and divide up the residents of cities, towns and “even a military base” by race to achieve its goal.

Because race was a primary factor motivating the maps for the 11 districts, the challengers continue, the only way to demonstrate that the legislature had good reason to believe that it was required to use race to comply with the VRA was by showing that it looked into the need to do so, based on the conditions in each district. But the district court in this case found that the legislature had not conducted any analysis at all to determine what percentage of African-American voters each district would have to contain to comply with the VRA.

More generally, the challengers dismiss the legislature’s arguments as excuses, reiterating that “states cannot pass legislation for predominantly racial reasons merely because of the press of time.” And the legislature cannot fail to investigate what percentage of African-American voters was appropriate to comply with the VRA, assume that all 11 districts are alike and then ask for the Supreme Court’s blessing. Such a rule, the challengers say, would be exactly contrary to the Supreme Court’s voting-rights cases.

Even as the Supreme Court prepares to hear oral argument on the constitutionality of the current maps next week, efforts to create a new map for the 2019 elections, with the help of a court-appointed expert, are moving forward in the lower court. In January, the Supreme Court rejected the legislators’ request to put those proceedings on hold until it issues its decision – which will likely come in May or June. Meanwhile, the state is scheduled to hold its primary elections in June, with the general election to follow in November.

This post was first published at Howe on the Court.