{"id":10396,"date":"2017-03-09T09:30:31","date_gmt":"2017-03-09T14:30:31","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10396"},"modified":"2017-03-09T09:59:13","modified_gmt":"2017-03-09T14:59:13","slug":"race-and-the-architecture-of-voting-districts-bethune-hill-v-virginia-state-board-of-elections","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/race-and-the-architecture-of-voting-districts-bethune-hill-v-virginia-state-board-of-elections\/","title":{"rendered":"Race and the Architecture of Voting Districts: Bethune-Hill v. Virginia State Board of Elections"},"content":{"rendered":"

Redistricting \u2013 the redrawing of state voting district boundaries every ten years \u2013 is intended to ensure that state legislatures fairly represent their voters.\u00a0 Instead, in a practice called gerrymandering<\/a>, state lawmakers often architect voting districts that will favor the election of incumbents and their political parties. \u00a0Gerrymandering is illegal when it is motivated by racial considerations\u00a0\u2013 for instance, when lawmakers \u201cpack\u201d minority voters into a few districts in order to dilute their voting power across the state.\u00a0 Yet how states redesign their voting districts \u2013 and, importantly, how courts should evaluate racial gerrymandering claims and legislatures should consider race in redistricting \u2013 is a tangled area of the law.<\/p>\n

Last week, in a 7-1 decision<\/a>,<\/em> the Supreme Court provided some clarity on racial gerrymandering.\u00a0 In Bethune-Hill v. Virginia State Board of Elections<\/em>, African American voters challenged Virginia\u2019s redistricting plan for 12 legislative districts as improper racial gerrymanders. \u00a0Specifically, they challenged Virginia\u2019s requirement that each of those districts have a black voting-age population of 55%, which they claimed packed black voters in these districts and diluted their voting power in other ones.<\/p>\n

Despite the near-unanimity of the opinion, the justices avoided deciding whether most of the voting districts at issue were unconstitutional racial gerrymanders. \u00a0Instead, with regards to 11 of the districts, the Court ruled on the narrower issue of whether the lower court had applied the proper standard for racial gerrymandering, and then remanded the case. \u00a0Election law experts have therefore disagreed on the impact of the case.\u00a0 The decision tracks the Court\u2019s apparent trend of reaching middle-ground rulings until a ninth justice is appointed.<\/p>\n

Virginia designed the voting districts at issue in Bethune-Hill<\/em> following the 2010 Census.\u00a0 At the time, the Voting Rights Act required states with a history of voting discrimination to ensure that redesigned voting maps would not result in the retrogression of a minority group\u2019s ability to elect its preferred candidates. \u00a0The delegate leading the redistricting efforts therefore identified a dozen \u201cminority-majority districts\u201d \u2013 districts where he felt blacks should compose a majority of the voter population. \u00a0He and other legislators proposed the 55% floor in those districts to comply with the Voting Rights Act. \u00a0(The Supreme Court has since gutted<\/a> the relevant portions of the Voting Rights Act in Shelby County v. Holder<\/em><\/a>.)<\/p>\n

Black voters in each of these majority-minority districts subsequently challenged Virginia\u2019s redistricting plan as an unlawful racial gerrymander in violation of the Equal Protection Clause.\u00a0 What makes this case tricky is that the districts appear to fit traditional redistricting criteria. \u00a0For example, some of the districts\u2019 lines are compact or drawn around natural geographical features. \u00a0By contrast, an extreme example of a voting district where traditional criteria were compromised is the North Carolina voting district found to be unconstitutional in Shaw v. Reno<\/a><\/em>; while the district was over 150 miles long, in some places it was as narrow as an interstate highway. \u00a0Furthermore, the Virginia legislature claims that it considered race in order to protect black voters.<\/p>\n

At the district court level, a divided three-judge panel upheld Virginia\u2019s redistricting plan as constitutional.\u00a0 In Miller v. Johnson<\/a><\/em>, the Supreme Court stated that, for a racial gerrymandering challenge, challengers must show that race was the \u201cpredominant\u201d factor motivating the legislature\u2019s district design. \u00a0If shown, the court then must apply<\/a> the highest level of scrutiny, evaluating whether the state had a compelling government interest and whether the district design was narrowly tailored to achieve that interest.<\/p>\n

Applying Miller<\/em>, the district court held<\/a> that the voters had not shown that race was the predominant factor motivating the legislature\u2019s design of 11 of the 12 challenged districts. The decision hinged on the court\u2019s conclusion that race predominates only when there is \u201can actual conflict\u201d between the challenged plan and traditional redistricting criteria.\u00a0 In other words, the court stated that a racial gerrymandering claim is viable only when lawmakers compromise traditional redistricting criteria. \u00a0Even though Virginia legislators designed the districts to ensure that 55% of the voters were black, the lower court found that 11 of the districts conformed with traditional criteria and thus concluded that race could not be the predominant factor motivating the districts\u2019 design.\u00a0 With respect to the twelfth challenged district, the court found that race predominated, but Virginia satisfied strict scrutiny because the district\u2019s design was narrowly tailored to comply with the Voting Rights Act.<\/p>\n

The Supreme Court found<\/a> that the district court’s standard for whether race predominated in the eleven districts, based on an \u201cactual conflict,\u201d was invalid.\u00a0 However, it affirmed the ruling that the twelfth district satisfied strict scrutiny.<\/p>\n

Justice Kennedy\u2019s opinion for the majority explained that challengers need not show an \u201cactual conflict\u201d between the chosen redistricting plan and traditional redistricting criteria.\u00a0 A plan can appear to have a traditional design and yet still be designed on the basis of \u201cunjustified racial classifications.\u201d\u00a0 Instead, courts should look at the considerations in designing the districts, and \u201cnot post hoc<\/em> justifications [that] the legislature in theory could have used but in reality did not.\u201d\u00a0\u00a0 Further, courts must engage in a \u201cholistic analysis\u201d and \u201cmust take account of the dictrictwide context.\u201d<\/p>\n

In considering the constitutionality of the twelfth district, the Court also explained that states can have some latitude in considering race as they design voting districts. \u00a0The Court assumed, without concluding, that the state\u2019s interest in obeying the Voting Rights Act was compelling.\u00a0 States don\u2019t need to figure out \u201cprecisely<\/em> what minority population\u201d the Voting Rights Act requires.\u00a0 Indeed, lawmakers may set fixed racial targets, such as the 55% target that Virginia used.\u00a0 What matters is that states need \u201cgood reasons<\/em>\u201d to believe that their targets were necessary.\u00a0 The Court concluded that, for at least one district, Virginia had good enough reasons.<\/p>\n

The Court seemed careful to note that it was not announcing new rules about racial gerrymandering. \u00a0Justice Kennedy stated that the \u201cholding in this case is controlled by precedent.\u201d<\/p>\n

Still, election law experts disagree about the consequences of Bethune-Hill<\/em>.\u00a0 At SCOTUSblog, Amy Howe notes<\/a> that because the Court remanded the case back to the district court, the dispute over these voting districts may remain unsettled as Virginia holds elections in November, and will likely result in another appeal to the Supreme Court.\u00a0 Professor Noah Feldman suggests<\/a> that this case may signal greater compromise between liberals and conservatives on the issue of redistricting moving forward.\u00a0 However, Professor Richard L. Hasen claims<\/a> that now the \u201cfight will be over details and application to particular cases.\u201d<\/p>\n

On the same day as Bethune-Hill<\/em>, the Court heard McCrory v. Harris<\/em><\/a>, a challenge to the design of two congressional districts in North Carolina as illegal racial gerrymandering.\u00a0 The Court now has an opportunity in that decision \u2013 involving what the lower court called<\/a> a \u201ctextbook example of racial gerrymandering\u201d \u2013 to more definitively refine the law or push it in a particular direction.\u00a0 Additional guidance for racial gerrymandering would be useful before states begin the next iteration of redistricting, which will take place after the 2020 Census.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Redistricting \u2013 the redrawing of state voting district boundaries every ten years \u2013 is intended to ensure that state legislatures 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