[EL] Breaking and Analysis: Supreme Court Decides Bethune-Hill, the VA Racial Gerrymandering Case

[Pildes, Rick]

Today’s Important Decision in Bethune-Hill
Posted on March 1, 2017 11:21 am<http://electionlawblog.org/?p=91415> by Richard Pildes<http://electionlawblog.org/?author=7>

As someone who litigates these cases and has written extensively about racial redistricting, I consider today’s decision a major new precedent with broad implications, not just for racial gerrymandering issues, but for partisan gerrymandering ones potentially as well.  Because I am involved in pending litigation on these issues, I will be cautious about how much I say, but I do not want journalists to get the wrong impression about the significance of this case.

On racial gerrymandering and the Constitution, the Court’s opinion today is more forceful and clear than it has ever been that unconstitutional racial gerrymandering can occur even when a State draws districts that look regular and follow traditional districting principles.  As the Court holds, “a conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering.”  Similarly, “[r]ace may predominate even when a reapportionment plan respects traditional principles.”  Litigants and advocates are going to differ in whether they like the clarity of this principle, but this clarification from the Court is extremely significant.  Lower courts have been in confusion about this very important question, as evident in today’s reversal.  This principle is going to make it significantly easier for plaintiffs to win racial gerrymandering claims.  Conversely, States are not going to be able to move voters around by race without adequate justification, yet claim that they can do so because they nonetheless are following traditional districting principles.

In addition, the Court indicated considerable sophistication about the changing dynamics through which States engage in unconstitutional racial gerrymanders.  As the Court points out, the leading prior cases all involved ones where legislatures had drawn contorted district boundaries for at least some of the district lines.  Now, the Court is beginning to see cases in which legislatures are no longer doing that, yet still using unjustified racial classifications.  As Justice Kennedy writes: “Yet the law responds to proper evidence and valid inferences in ever-changing circumstances, as it learns more about ways in which its commands are circumvented.”  This is a strong signal to lower courts not to apply prior cases formalistically or mechanically, but to ferret out unconstitutional racial gerrymanders that take ever-evolving form.

Moreover, the Court had decided the major precedent leading up to today’s decision, Alabama Legislative Black Caucus (which I argued) by a 5-4 vote.  But the dissenting Justices (Scalia, Alito, Roberts, Thomas) dissented on procedural grounds; it had been unclear how sympathetic they would be to the position of Southern states that have to comply with the Voting Rights Act versus the view that the Constitution sharply constrains the States, even when they purport to comply with the VRA.  Justice Alito has now made clear that, on the merits, he views the Constitution as sharply constraining the States here and would have been in the majority in the Alabama case.  As Justice Thomas puts it in his separate opinion:  “Despite my sympathy for the State, I cannot ignore the Constitutional clear prohibition on state-sponsored race discrimination.”  One might have expected Justice Thomas to take that view, but he too did not reach the merits in the Alabama case.  As an aside, note that in both the Alabama and Virginia cases, the Court is addressing Republican-drawn districting plans.   The fact that such a substantial majority of Justices are prepared to police aggressively the State’s use of race in redistricting is also significant, in light of the 5-4 vote in Alabama.

Finally, there is a direct relationship, potentially, between today’s decision and a central issue in the partisan gerrymandering case from Wisconsin, Whitford v. Gill.  The case is presently on appeal to the Supreme Court.  A crucial issue there is Wisconsin’s position that, because it followed traditional districting principles in drawing its districts, it cannot have created an unconstitutional partisan gerrymander. If the Court applies the same principle in the partisan case as in the race case today and holds that what would otherwise be an unconstitutional partisan gerrymander cannot be immunized merely because the legislature the districts comply with traditional districting principles, that would enormous consequence for the Whitford case on appeal to the Supreme Court.


Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square South, NY, NY 10012
212 998-6377

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, March 01, 2017 10:36 AM
To: Election Law Listserv
Subject: [EL] Breaking and Analysis: Supreme Court Decides Bethune-Hill, the VA Racial Gerrymandering Case

Breaking and Analysis: Supreme Court Decides Bethune-Hill, the VA Racial Gerrymandering Case<http://electionlawblog.org/?p=91402>
Posted on March 1, 2017 7:07 am<http://electionlawblog.org/?p=91402> by Rick Hasen<http://electionlawblog.org/?author=3>
The Supreme Court, in an opinion by Justice Kennedy (joined by the Court’s liberals and Justice Alito) has affirmed in part and reversed in part the Virginia racial gerrymandering case, Bethune-Hill v. Va. State Board of Elections<https://www.supremecourt.gov/opinions/16pdf/15-680_c07d.pdf>.<https://www.supremecourt.gov/opinions/16pdf/15-680_c07d.pdf> Justice Alito concurred in part and concurred the judgment and Justice Thomas concurred in part and dissented in part.
The opinion is an important technical case about how to apply the standards racial gerrymandering cases, but it breaks little new ground, and this case itself is likely to be back up to the Supreme Court for further review. It is more of a punt than a major decision.
We are still awaiting the decision in the other racial gerrymandering case argued that day (out of North Carolina), McCrory v. Harris<http://www.scotusblog.com/case-files/cases/mccrory-v-harris/?wpmp_switcher=desktop>. That case presents a more difficult question about how to deal with the problem of the overlap of race and party concerns, especially in the South (and the subject of my draft paper, mentioned below.)
Bethune Hill  concerns racial gerrymandering cases which have existed since the Supreme Court created the claim in Shaw v. Reno (1993) and modified by Justice Kennedy’s decision in Miller v. Johnson (1995). The claim is one of separating voters on the basis of race without adequate justification. It is not a vote dilution case, and the Court confirmed today (with Justice Kennedy relying heavily on Miller) that the harm is one of separating voters on the basis of race:
The harms that flow from racial sorting “include being personally subjected to a racial classification as well as being represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group.” Alabama, 575 U. S., at ___ (slip op., at 6) (alterations, citation, and internal quotation marks omitted). At the same time, courts must “exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race.” Miller, 515 U. S., at 916. “Electoral districting is a most difficult subject for legislatures,”
The three-judge trial court had found that 11 of the 12 challenged districts were not racial gerrymanders, but a 12th legislative district, District 75 was. On District 75, the lower court found that race was the predominant factor and that a 55% rate of Black Voting Age Population (BVAP) was narrowly tailored to meet the state’s compelling interest in complying with the (now-moribund) Section 5 of the Voting Rights Act.
On the 11 districts, the Supreme Court reversed and held that the trial court applied the wrong standard as to the relevance of whether or not there was a gerrymander. The Court today said it is not necessary for challengers to prove that the state failed to comply with traditional redistricting principles:
For these reasons, a conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering. Of course, a conflict or inconsistency may be persuasive circumstantial evidence tending to show racial predomination, but there is no rule requiring challengers to present this kind of evidence in every case.
So the case goes back for reconsideration by the district court on these districts to reconsider without this burden on plaintiffs. It is not clear if this leads to any new results.
On District 75, the state had conceded that compliance with Section 5 constituted a compelling interest, and the question was whether a 55 percent BVAP was narrowly tailored to comply with that interest. The Court said that it was, and Justice Alito in his separate dissent said that it was important to emphasize that the state had made this concession. (That is, the Court did not confirm that compliance with the Voting Rights Act could defeat a racial gerrymandering claim.)
Justice Thomas, in his partial dissent, restated his long-held belief (with Justice Scalia) that all race conscious redistricting triggers strict scrutiny. He also believed that on District 75, the Court was not strict enough on the narrow tailoring analysis and would have reversed.
So the upshot of all of this is that not much has changed, with these cases, and there is no rethinking, among liberals or conservatives on the Court, of this cause of action. The fight will be over the details and application to particular cases.
That’s too bad, as I think the entire cause of action is nonsensical. Here’s my paper on that, which I’m presenting tomorrow at the University of Texas Faculty colloquium: Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>.
[This post has been updated.]
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


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Rick Hasen
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UC Irvine School of Law
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