By Leland Ware
On March 1, 2017, the United States Supreme Court ruled that a conflict between a state’s redistricting plan and traditional redistricting criteria is not a mandatory precondition to establish a claim of unconstitutional racial gerrymandering.
After the 2010 census, Virginia’s General Assembly decided to redraw the legislative districts for the State Senate and House of Delegates. In 2011, a Virginia legislative committee established criteria for the redistricting process. These included traditional considerations such as compactness, contiguity of territory, respect for neighborhoods, and communities of interest.
The Committee included to two additional goals: the population of every district should be as equal as practicable; and the new map must protections against “retrogression” as required by contained in §5 of the Voting Rights Act. Retrogression is any change to a voting standard, practice, or procedure that has the purpose or effect of diminishing the ability of members of a minority group to elect their preferred candidates.
Voters registered in 12 of the redrawn districts filed a civil action challenging the redistricting under the Equal Protection Clause of the Fourteenth Amendment. They argued that the 12 districts were illegally packed with African-Americans, which diluted their voting strength in other nearby districts, making those districts friendlier to Republicans. After a trial, a 3-judge District Court panel concluded that for 11 of the 12 districts challenged the plaintiffs did not prove that race was the predominant factor motivating the legislature’s decision to place significant numbers of voters inside or outside of a particular district. The District Court held that race predominates only when there is an actual conflict between traditional redistricting criteria and racial considerations.
As to the district 75, the other legislative district that was challenged, the trial Court found that race was the predominate consideration when the boundaries were drawn. However, when a challenger succeeds in establishing racial predominance, the burden shifts to the State to demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest. The trial Court held that district 75 was constitutional because the legislature’s use of race was narrowly tailored. Race was used to avoid retrogression, which is a compelling state interest.
When the case reached the Supreme Court it reversed the trial Court’s decision. The high court ruled that a conflict or inconsistency between a plan and traditional redistricting criteria is not a mandatory precondition for a challenger to establish a claim of racial gerrymandering. Conflicts or inconsistencies may be circumstantial evidence of racial predomination, but there is no rule requiring challengers to present this kind of evidence in every case.
The challengers also contended that the District Court committed error when it considered the legislature’s racial motive only to the extent the challengers identified deviations from traditional redistricting criteria that were attributable to race and not to some other factor. As with the other aspect of the plaintiffs’ claim, the Supreme Court held that showing a deviation from, or conflict with, traditional redistricting principles is not a necessary prerequisite to establishing racial predominance.
The Court affirmed the trial court’s ruling that district 75 was constitutional because the legislature’s use of race had a compelling justification and was narrowly tailored. The case was remanded to the District Court to determine the extent to which race influenced the shape of the 11 other districts that were challenged using the correct legal standard. The case is a victory for voting rights advocates because it relaxed what would have been a more stringent and difficult to meet burden of proof in gerrymandering cases.
 In Shelby County v. Holder, the Supreme Court in 2013 ruled that Section 4(b) is unconstitutional because the coverage formula was based on outdated data more which did not reflect current conditions in covered jurisdictions. This made Section 4(b) an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula.