Home In-Depth Reporting Supreme Court considers challenges to racial…

Supreme Court Report

Supreme Court considers challenges to racial gerrymandering

One term after the U.S. Supreme Court upheld the consideration of race in college admissions, and in a new term that already has cases on racial issues in the administration of the death penalty and in jury deliberations, one more race-infused subject will get the justices’ attention: redistricting.

The court will hear appeals on Dec. 5 from special three-judge federal panels that involve race considerations in redistricting in North Carolina and Virginia.

In the North Carolina case, McCrory v. Harris, the justices will consider whether two of the state’s 13 congressional districts, as drawn under a 2011 redistricting plan, represent unconstitutional racial gerrymanders.

In Bethune-Hill v. Virginia State Board of Elections, the court will weigh whether race was an improperly predominant factor in 12 challenged state House of Delegates districts (out of 100 districts in the state legislature’s lower house).

They’re the latest in a long line of redistricting battles to reach the high court, which has less flexibility on whether to hear such challenges than it does in most other areas of the law.

“It’s worth recognizing what an exclusively delicate position these state legislators are in,” says Paul D. Clement, the Washington, D.C., lawyer and Supreme Court specialist who will represent both states before the justices. “It’s almost impossible for a state legislature to redraw the map without drawing a challenge.”

The cases arise out of redistricting that occurred after the 2010 U.S. census, a time when Republicans gained control of both legislative chambers in 25 states and the governor’s mansion in 29 states. In several states, Republican legislative mapmakers sought to pack African-American voters into a handful of districts, generally to make other districts stronger for Republicans.

“There must have been some kind of memo that went around in Republican circles because basically you see this same pattern of behavior in Alabama, South Carolina, North Carolina, Virginia and probably other states,” says Paul M. Smith of Jenner & Block, who wrote an amicus brief on behalf of the Campaign Legal Center and other groups on the side of the challengers in the cases.

“The basic goal in redrawing these lines was to add the African-American population where possible to the existing African-American districts or, at a minimum, keep the population at a level that was much higher than it needed to be,” Smith says.

REMAPPING THE DISTRICTS

In North Carolina, lawmakers drew a remap after the 2010 census that increased the black voting-age population in two districts in an effort to create majority-black districts. In Congressional District 1, the BVAP increased from 47.8 percent to 52.7 percent. In Congressional District 12, the BVAP increased from 43.8 percent to 50.7 percent.

Challengers say this was an effort to pack African-American voters into the two districts, which led to easy victory for black candidates in 2012 elections. The state had no black-majority districts under its remap following the 2000 census.

“This case presents, as the district court appropriately put it, a ‘textbook’ example of racial gerrymandering,” said Marc E. Elias, a partner with Perkins Coie, in a brief for the challengers. “This is no surprise: The state of North Carolina wrote the book on racial gerrymandering.” (Elias could not be reached for comment. The prominent attorney for Democratic Party interests also was the general counsel to Hillary Clinton’s presidential campaign.)

A special three-judge federal district court panel struck down the state’s redistricting plan based on the conclusion that Congressional Districts 1 and 12 were racial gerrymanders that violated the equal protection clause.

For District 1, the panel ruled unanimously that race predominated in drawing the district’s lines, and considerations under Section 2 of the Voting Rights Act of 1965 didn’t justify the racial predominance because there was a lack of evidence of racial bloc voting as required under the Supreme Court’s precedents.

The district court divided 2-1 regarding District 12 in North Carolina, with the majority ruling race predominated against political concerns. The dissenting judge would have held that politics dominated against race in the district’s drawing.

In the Virginia case, the state legislature drew a map after the 2010 census that created 12 state House of Delegates districts with the black voting-age population of at least 55 percent.

Virginia still was a covered jurisdiction under Section 5 of the Voting Rights Act, before the Supreme Court’s 2013 Shelby County v. Holder decision. That ruling in an Alabama case struck down Section 4 of the Voting Rights Act, the provision that established the coverage formula for Section 5—which required states and locations with a history of discrimination in voting to gain federal approval of changes, including redistricting and election procedures. (See “Voting Blocks,” November).

State lawmakers contend they had to draw the 12 districts with high BVAP levels to avoid racial retrogression and to win preclearance for their plan. (And the Department of Justice precleared the plan in 2011.)

Still, the plan was challenged as a racial gerrymander by voters. A three-judge panel upheld the plan. While the adoption of a 55 percent BVAP goal was “significant evidence” of racial predominance, the court said that strict scrutiny applies only when, quoting Justice Sandra Day O’Connor in a redistricting case, “the state has relied on race in substantial disregard of customary and traditional districting practices.”

The court evaluated each district at issue and found that in 11 of the 12, race hadn’t been a predominant factor. In the 12th district, the court found that the state had required “drastic maneuvering” to meet the 55 percent BVAP target, but it upheld the district because it said the use of race was narrowly tailored to meet the preclearance requirement.

One judge dissented, arguing that the state’s use of a “one-size-fits-all” BVAP target suggested that race predominated in all 12 districts.

POLITICAL CONSIDERATIONS

Elias, whose firm also represents the challengers to the Virginia state districts, wrote in a brief that the district court majority reached a “counterintuitive conclusion” that the 55 percent BVAP goal did not result in racial predominance in 11 of the 12 challenged districts. “Ultimately, the majority’s analysis turns a blind eye to the concrete harms of unjustified race-based districting,” Elias wrote.

Clement, in defending the Virginia remap, argued that a broad consensus existed on the need to maintain the 12 majority-minority state House districts to avoid preclearance problems, and that the legislature did not deviate from traditional districting principles to achieve its goal.

“To the contrary, the challenged districts retained, on average, more than 72 percent of their cores—a level above the statewide average,” Clement wrote in a brief. “And the few seeming abnormalities in the districts’ lines are readily explained by traditional criteria, such as incumbency protection, increasing compactness and contiguity, or political considerations.”

Law professors and other analysts inevitably turn to an issue not squarely presented by the cases—political gerrymandering.

“On partisan gerrymandering, there is already a majority of justices who think that it is unconstitutional, but it’s just nonjusticiable because they haven’t figured out what the test ought to be for doing that,” says Martin S. Lederman, a professor at Georgetown University Law Center.

Clement agrees. “In the world we live in, the court has kind of said, ‘Well, we’re not going to say it’s OK, but we haven’t come up with any justiciable standards,’ ” he says.

Richard H. Pildes argued an Alabama redistricting case two terms ago and won a decision that required closer lower-court scrutiny of an alleged racial gerrymander in the state legislative redistricting.

“In these cases, the Supreme Court has to define the path between using race to draw election districts in a way that is required by the VRA and using race in a way that goes significantly beyond that and is unconstitutional,” says Pildes, a professor at New York University School of Law.

The North Carolina and Virginia cases will be heard by an eight-member Supreme Court. With the lower court decisions largely split between striking down and upholding the challenged plans, a deadlock would leave redistricting laws unsettled as time ticks closer to the next round of line drawing.

This article originally appeared in the December 2016 issue of the ABA Journal with this headline: "Lines in the Sand: Court considers challenges to racial gerrymandering in Southern redistricting cases."