Kristen Clarke is President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. Ezra Rosenberg is Co-Director of the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law.

As we prepare for the upcoming round of 2020 redistricting, the opinions in Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris make clear that what constitutes unlawful racial gerrymandering will prove critical. Although states and localities can act intentionally to preserve and create majority-minority districts, they must do so in a way that complies with the Constitution. First, and put simply, race cannot predominate over every other consideration. And, second, unlawful racial gerrymandering cannot be justified as an attempt to achieve partisan ends.

The decisions provide a workable approach for addressing allegations of unconstitutional racial gerrymanders, while at the same time rejecting the proposition that the intentional creation of a majority-minority election district automatically triggers strict scrutiny. This is clear from the sum and substance of the majority opinions, and from the explicit language in the separate opinions of Justices Samuel Alito and Clarence Thomas in Bethune-Hill and that of Thomas in Cooper. A contrary result would have imperiled legitimate attempts by state legislatures to create majority-minority districts.

Although the majority opinion in Bethune-Hill reformulated the standard applicable to racial gerrymandering cases to move away from over-reliance on compliance with traditional districting principles, – in Justice Anthony Kennedy’s words, “The Equal Protection Clause does not prohibit misshapen districts” – it left room for legislatures to draw majority-minority districts intentionally without implicating constitutional concerns. The court did not expressly rule in Bethune-Hill that setting a target percentage of a minority population to be included in an election district does not automatically trigger strict scrutiny, but the decision makes no sense unless that proposition is rejected. As Kennedy noted at the outset of the court’s opinion, “[i]t 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%.” Clearly, in the view of the court, this was not enough, in and of itself, to trigger strict scrutiny by establishing that race was “the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” In fact, the court remanded the case to the district court for further fact-finding as to whether strict scrutiny applied as to 11 of the 12 districts, a remand that would not have been necessary if the setting of the target automatically triggered strict scrutiny. This point was not lost on Alito or Thomas, both of whom concurred in the remand decision, but “would hold that all these districts must satisfy strict scrutiny.”

Particularly noteworthy is that Chief Justice John Roberts joined the majority opinion in Bethune-Hill. In 2006, Roberts had joined Justice Antonin Scalia’s concurrence to the decision in League of United Latin American Citizens v. Perry, which had included this language: “[W]hen a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation and strict scrutiny is therefore triggered.” Both Alito and Thomas quoted this passage in their concurrences to the majority opinion in Bethune-Hill. Under these circumstances, the fact that, when presented with a clear choice between remanding for the plaintiffs to show whether strict scrutiny applies and remanding for the state to show that the redistricting satisfies strict scrutiny, Roberts chose the former speaks volumes.

Likewise, the decision in Cooper does not indicate that the “uncontested evidence” that the state’s mapmakers “purposely established a racial target” was sufficient, in and of itself, to trigger strict scrutiny. Rather, the court’s analysis proceeded to an examination of how the 50-percent-plus racial target actually affected the configuration of District 1, one of the two districts in question. Justice Elena Kagan’s opinion noted that the mapmaker “deviated from the districting practices he otherwise would have followed.” For example, Kagan observed that the mapmaker did not respect county or precinct lines. Based on this assessment of the mapmaking process, the court concluded that the “announced racial target subordinated other districting criteria and produced boundaries amplifying divisions between blacks and whites,” and found that that race predominated in the drawing of the district.

Dispelling any doubt about the court’s refusal in Cooper to adopt the rationale that the setting of the majority-minority target in itself triggered strict scrutiny, Thomas was compelled once again to write a separate opinion, expressing the sentiment found nowhere in the majority opinion that “North Carolina’s concession that it created the district as a majority-black district is by itself sufficient to trigger strict scrutiny.”

It is worth noting that, although the court in both Bethune-Hill and Cooper unequivocally declined to hold that a plaintiff in a racial gerrymandering case must prove an actual “conflict” or “inconsistency” between the drawn lines and traditional districting principles, it nevertheless recognized the “subordination” of traditional districting principles to racial considerations as a prime factor in its analysis. Indeed, in the course of discussing the other district under consideration in Cooper, District 12, the court noted that “[i]n the more usual case alleging a racial gerrymander … the court can make real headway by exploring the challenged district’s conformity to traditional districting principles, such as compactness and respect for county lines.”

Two other issues in the Cooper opinion merit discussion. First, the court rejected the notion that a legislature can defend against a charge of racial gerrymandering by showing that the redistricting furthers partisan ends, the state’s sole justification for the lines it drew for District 12. Addressing this argument, the court observed that “if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests – their action still triggers strict scrutiny.” The court then proceeded to uphold the findings of the district court that it was race, not politics, that accounted for District 12’s configuration, by looking at record evidence showing that the boundaries were more influenced by racial data than by partisan-affiliation data.

Finally, the court cleared up confusion caused by language in Easley v. Cromartie, known as Cromartie II, which the state argued compelled a plaintiff to produce “alternative maps” to prove that it was race, not politics, that impelled the line-drawing. The court explained that the language in Cromartie II was written in a context of a much more equivocal case, and was not meant to establish a “categorical rule.” “A plaintiff’s task,” Kagan wrote, “is simply to persuade the trial court – without any special evidentiary prerequisites – that race (not politics) was the ‘predominant consideration in deciding to place a significant number of voters within or without a particular district.’” Once plaintiffs have done so, there is no need for them to “jump through additional evidentiary hoops.”

Recommended Citation: Ezra Rosenberg and Kristen Clarke, Symposium: Court clarifies review of racial gerrymandering, but does not impose strict scrutiny on every intentional creation of a majority-minority district, SCOTUSblog (May. 22, 2017, 8:15 PM), https://www.scotusblog.com/2017/05/symposium-court-clarifies-review-racial-gerrymandering-not-impose-strict-scrutiny-every-intentional-creation-majority-minority-district/