By Leland Ware
In Page v. Virginia Board of Electors a three-judge panel held on October 7, 2014, that a Virginia Congressional redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment because it was a racial gerrymander.
Between 2000 and 2010, Virginia’s population grew by 13 percent. Because the growth was unevenly distributed the state was obligated to redraw its congressional districts to balance populations in each district. Virginia developed plan and submitted it to the U.S. Department of Justice for Section 5 preclearance.
The plan was approved on March 14, 2012, based on a finding that it would not result in a retrogression of the ability of African American voters to elect candidates of their choice. (A retrogressive plan makes changes that reduce minority groups’ opportunities to elect candidates of their choice.)
A civil action was filed claiming Virginia used Section 5’s preclearance requirement as a pretext to pack African American voters into Virginia’s Third Congressional District and to reduce those voters’ influence in other districts. The redrawn District, the plaintiffs contended, violated the Equal Protection Clause of the Fourteenth Amendment.
The evidence showed that the legislature subordinated traditional districting principles, such as to compactness, contiguity and respect for political subdivisions, to racial considerations. “Packing” is a tactic that dilutes minority votes by putting as many minority voters into as few districts as possible to minimize the number of representatives they can elect. Virginia’s plan packed more African American voters into what was the only congressional district in Virginia with a majority-minority population represented by a black incumbent, Congressman Bobby Scott. This made adjoining districts whiter and safer for Republican incumbents.
Under the new plan the Third District’s voting-age population grew from 53.1 percent African American to 56.3 percent African American. Maps of the district showed it is an oddly shaped chain of predominantly African American communities, stretching from Richmond to Norfolk, loosely connected by the James River. The redistricting has been described as “one of the most aggressive gerrymanders in the country.”
The legislature used proximity to the James River to bypass white communities and connect predominantly African American populations in areas such as Norfolk, Newport News, and Hampton. Other evidence showed that the Third District was the least compact congressional district in Virginia. It split more voting tabulation districts than any other congressional district.
Virginia’s lawyers conceded that avoiding retrogression was the legislature’s top priority in drawing the 2012 plan. Former delegate William Janis, the legislation’s sole author, emphasized that his foremost objective in drawing Virginia’s congressional maps was ensuring that the Third Congressional District retained as large a percentage of African American voters as it had under the under the existing boundaries. Janis said he considered race to be the single, “nonnegotiable” redistricting criterion.
In cases where race is the predominant factor the redistricting plan must be subjected to the “strict scrutiny.” A racially motivated redistricting can be justified only when it has a “compelling justification” and the means chosen are “narrowly tailored” to achieving a legitimate governmental objective. In this case the Court found that compliance with Section 5 was a compelling state interest, but the means chosen were not narrowly tailored to achieving the legislation’s goals
The majority’s opinion noted that the Supreme Court has repeatedly struck down redistricting plans that went beyond what was necessary to avoid retrogression. As the Court explained, Section 5 “does not give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression.” The panel ruled, 2-1, that race was the predominant consideration when Virginia’s legislators re-drew the boundaries of the Third Congressional District. This was a textbook case of racial gerrymandering. The avoiding retrogression justification was a pretext for packing African Americans in a single district.
Page v. Virginia Board of Electors shows that efforts to undermine the voting rights of African Americans are longstanding and ubiquitous. The case is an example of the many abuses of the “incumbent protection racket” known as congressional redistricting.
 Section 5 of the Voting Rights Act (VRA) was enacted in 1965 to prevent changes in election practices in covered jurisdictions until the new procedures were determined by the Attorney General, or the U. S. District Court for the District of Columbia as not having a discriminatory purpose or effect. In Shelby County v. Holder the Supreme Court held in 2013 that it was unconstitutional to use the coverage formula contained in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act. The Supreme Court did not rule on the constitutionality of Section 5 itself but the effect of the Shelby decision is that the jurisdictions identified by the coverage formula in Section 4(b) are no longer obligated to seek preclearance for the new voting changes.