Supreme Court Refines Racial Predominance Determination in Racial Gerrymandering Case

In a 7-1 decision in Bethune-Hill v. Virginia State Board of Elections the Supreme Court rejected the notions that race predominates in redistricting only when there is an actual conflict between traditional redistricting criteria and race and that the predominance analysis should apply only to new district lines that appear to deviate from traditional redistricting criteria.

Regarding District 75, where the lower court determined race did predominate, the Supreme Court agreed the State’s use of race was narrowly tailored because it had “good reasons to believe” that a target of a 55% black voting-age population (BVAP) was necessary to avoid diminishing the ability of black voters to elect their preferred candidate.

When the Virginia legislature redistricted following the 2010 census it prioritized making sure districts were equal in population and avoiding retrogression--where the number of districts where minority groups can elect their candidate of choice (ability-to-elect districts) are diminished. At the time Virginia was a covered district under Section 5 of the Voting Rights Act meaning all changes to voting practices had to be precleared by showing they would not lead to retrogression.

Virginia had 12 ability-to-elect districts, most of which were underpopulated. “Seeking to maintain minority voters’ ability to elect their preferred candidates in these districts while complying with the one-person, one-vote criterion, legislators concluded that each of the 12 districts ‘needed to contain a BVAP of at least 55%.’”  

Challengers claimed that race predominated in drawing the lines in these 12 districts in violation of the Equal Protection Clause. The district court found that race didn’t predominate in 11 of the districts.

Regarding those 11 districts the Supreme Court, in an opinion written by Justice Kennedy, rejected the lower court’s conclusion that to prove racial predominance the challengers had to show an actual conflict between the enacted plan and traditional redistricting principles (compactness, contiguity of territory, respect for communities of interest, etc.). The Court noted that to date it has never ruled favorably on a predominance finding “without evidence that some district lines deviated from traditional principles.” But “[t]he Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.”

The Court also rejected the district court’s conclusion that it should only look at portions of district lines that appear to deviate from tradition redistricting criteria when determining predominance. “That is because the basic unit of analysis for racial gerrymandering claims in general, and for the racial predominance inquiry in particular, is the district. Racial gerrymandering claims proceed ‘district-by-district.’”

The Court did not rule whether race predominated in the 11 districts. Instead it merely corrected the district court’s racial predominance standard and left it to the lower court to rule again on predominance.

Regarding District 75, where the lower court concluded that race did predominate, to overcome a racial gerrymandering claim a State must “demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest.” The district court concluded that Virginia’s use of race was narrowly tailored to achieve compliance with Section 5 of the Voting Rights Act.

The Supreme Court agreed finding that in light of the redistricting plan architect’s “careful assessment of local conditions and structures, the State had a strong basis in evidence to believe a 55% BVAP floor was required to avoid retrogression.” The challengers claimed that the Supreme Court previously rejected a “mechanically numerical view” of BVAP in Alabama Legislative Black Caucus v. Alabama (2015). The Court responded that all it did in Alabama was “correct the ‘misperception’ that §5 required a State to ‘maintai[n] the same population percentages in majority-minority