Supreme Court Update: Bethune-Hill v. Va. State Board of Elections (15-680)
Greetings, Court Fans!
We're back with the lone decision from this week, Bethune-Hill v. Va. State Board of Elections (No. 15-680), one of two racial gerrymandering cases argued on the same day back in December. (Interestingly, the other case, McCrory v. Harris (15-1262), remains undecided, despite raising similar issues.)
Following the 2010 census, the Virginia legislature engaged in redistricting in order to ensure proper numerical apportionment for the House of Delegates. Although the legislature used several traditional criteria for drawing district lines—including compactness and continuity of territory—it gave priority to the goal of preventing unwarranted "retrogression" under Section 5 of the Voting Rights Act. As amended in 2005 (and before the Court gutted it in Shelby County v. Holder (2013)), Section 5 required states like Virginia to get "preclearance" for their redistricting plans, and effectively prohibited the State from adopting a plan that would diminish the number of districts in which minority groups could elect their "preferred candidates of choice." To avoid retrogression, the legislature sought to preserve or create twelve House districts with a black voting-age population (BVAP) of at least 55%. The redistricting plan was approved by the legislature in April 2011, with broad support from both parties and members of the Black Caucus, and was precleared by the Department of Justice.
Nevertheless, three years later, twelve voters registered in the twelve districts filed a lawsuit challenging the district lines under the Equal Protection Clause. A three-judge District Court ruled for the State, concluding that, with respect to eleven of the districts, race did not "predominate" because there was no "actual conflict between traditional redistricting criteria and race that leads to the subordination of the former." With respect to the twelfth district (District 75), the District Court found that race did predominate and therefore applied strict scrutiny, but it held that strict scrutiny was satisfied because the State had a compelling interest in complying with Section 5 and the plan was narrowly tailored to that interest.
On direct appeal, the Supreme Court affirmed with respect to District 75, but vacated with respect to the other eleven districts. Writing for six (the liberals and the Chief), Justice Kennedy explained that the District Court misconstrued the standard for establishing racial gerrymandering when it required the plaintiffs to establish an actual conflict between the enacted plan and traditional redistricting principles. Though a plaintiff alleging racial gerrymandering has the burden of showing that race was the "predominant factor" motivating the legislature's districting decision, "[r]ace may predominate even when a reapportionment plan respects traditional principles . . . if race was the criterion that, in the State's view, could not be compromised, and race-neutral considerations came into play only after the race-based decision had been made." The proper inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not whatever post hoc justifications the legislature could have used, but did not. Accordingly, while a conflict with traditional redistricting criteria is certainly evidence of an unconstitutional racial gerrymander, the District Court erred insofar as it concluded that a challenger must make this showing. The majority stopped short of concluding that race did in fact predominate in the eleven districts where the District Court held that it did not. Instead, the Court remanded the case to the District Court to determine whether race directed the shape of those districts and, if so, whether the plan satisfies strict scrutiny.
With respect to District 75—where the District Court held race did predominate—the Supreme Court affirmed the District Court's conclusion that the districting satisfied strict scrutiny. The Court first observed that the challengers did not dispute that complying with Section 5 of the VRA qualified (at least pre-Shelby County) as a compelling interest. With respect to tailoring, the Court explained that, when a state cites compliance with the VRA as a compelling interest, "the narrow tailoring requirement insists only that the legislature have a strong basis in evidence in support of the (race-based) choice that it has made." The state does not have to show that its action was "actually . . . necessary" to avoid a statutory violation. "Rather, the requisite strong basis in evidence exists when the legislature has good reasons to believe it must use race in order to satisfy the Voting Rights Act." Applying this standard, the Supreme Court found no error in the District Court's conclusion that Virginia had sufficient grounds to determine that the race-based calculus it employed in District 75 was necessary to avoid a violation of Section 5.
Justice Alito filed a brief opinion concurring in part and concurring in the judgment. He agreed with the majority insofar as it upheld the constitutionality of District 75, because the plan was adopted before the Court's decision in Shelby County and it was therefore appropriate to conclude that the State had a compelling interest in complying with Section 5. He also concurred that the District Court's judgment with respect to the remaining 11 districts, but disagreed with the Court's decision to leave the question of whether race predominated in those districts to the District Court. In his view, the case should be remanded solely for the District Court to determine if the districts can survive strict scrutiny.
Justice Thomas, writing for himself, agreed with Alito that the State's concession that the legislature intentionally drew all twelve districts as majority-black districts necessarily mandates that strict scrutiny be applied to each on remand. Unlike Justice Alito, however, Thomas dissented from the decision affirming the District Court's judgment on District 75. Because he believes Section 5 is unconstitutional, he would hold that a State does not have a compelling interest in complying with it. In addition, he rejected the notion, embraced by the majority, that narrow tailoring can be shown as long as a state has "good reasons to believe" that the use of race is required to comply with Section 5. In Thomas's view, there was insufficient evidence that 55% BVAP districts were the least restrictive means of advancing this interest (even assuming it's compelling). Though Justice Thomas sympathized with the State—which he maintained was placed in untenable position by the Court's refusal to strike down Section 5—he concluded that the Constitution's "clear prohibition on state-sponsored race discrimination" required reversal with respect to District 75.And that's all they wrote. This week at least. We'll almost certainly be back next week with more decisions.