Supreme Court to Decide “Predominance” Racial Gerrymandering Case

Bethune-Hill v. Virginia State Board of Elections, like many redistricting cases, is complicated. The lower court opinion, including a dissent, is nearly 200 pages long. So it is difficult to know what the Supreme Court will focus on.

But what those challenging the plan seem most upset about is that the lower court concluded race does not “predominate” in redistricting unless the use of race resulted in an “actual conflict” with traditional redistricting criteria. 

Voters from 12 Virginia House of Delegates districts claim their districts were uncon

stitutionally racially gerrymandered following the 2010 census. Both parties agrees that one of the goals of the redistricting plan was to ensure that these 12 districts had at least a 55% black voting age population (BVAP). At least some of the legislators believed having these district was necessary to comply with Section 5 of the Voting Rights Act which at the time required covered districts like Virginia, to not make it more difficult for minority voters to elect their candidate of choice. 

To prove an unconstitutional racial gerrymander, challengers must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” To show that race predominated, challengers must show that the legislature “subordinated traditional race-neutral districting principles . . . to racial considerations” in drawing districts. Traditional race-neutral districting principles include compactness, contiguity, adherence to boundaries provided by political subdivisions, etc.

According to the lower court, predominance demands a showing of “‘actual conflict between traditional redistricting criteria and race that leads to the subordination of the former.” The lower court only found actual conflict in one "very irregular" district that required "drastic maneuvering" to have a 55% BVAP. 

The challengers claim that the actual conflict test is a new legal standard that relies almost absolutely on a district’s physical appearance. They object to it, arguing “the majority reduced racial gerrymandering cases to a beauty contest in which districts that ‘do[] not substantially disregard traditional, neutral districting principles’ are immune from constitutional scrutiny, and found that ‘[t]he existence of a 55% BVAP floor does not disturb that fact.’” According to the challengers: “[t]he practical effect of the majority’s test is to legalize the intentional sorting of voters on the basis of race as long as the legislature does it neatly enough.”