Supreme Court Decines to Rule on Racial Gerrymandering Case from Virginia

Virginia House of Delegates v. Bethune-Hill[1]

On June 17, 2019, the Supreme Court issued a decision in Virginia House of Delegates v. Bethune-Hill. The events leading up to the case began in 2011 when Virginia redrew legislative districts for the State’s Senate and House of Delegates. Voters in 12 of the impacted House districts sued charging that the redrawn districts were racially gerrymandered in violation of Equal Protection Clause of the Fourteenth Amendment. Gerrymandering occurs when a legislature divides a geographic area into political units in a manner that disadvantages African American or Latino/as voters.

Virginia’s House of Delegates intervened as a party to the case arguing the constitutional validity of the challenged districts. After a trial a three-judge panel ruled that race was not a predominant factor in the creation of eleven of the districts. The panel also held that race was a predominant factor for the boundaries of the remaining district, District 75, but the legislature did not violate the Equal Protection Clause because the legislature's use of race was narrowly tailored to achieving a compelling state interest.

When the case was appealed the Supreme Court held that the district court applied an incorrect legal standard when it determined that race did not predominate in the redistricting. The case was remanded to the district court for further proceedings. After a second trial, a three-judge court, held 2 to 1, that in 11 of the districts the State had unconstitutionally sorted voters based on their race. The court enjoined Virginia from conducting any elections until a new redistricting plan was adopted. A new map was eventually drawn with the help of a court-appointed expert

A few weeks after the entry of the trial court’s decision, Virginia’s Attorney General announced that the State would not pursue an appeal to the Supreme Court. Virginia’s House filed its own appeal. The Supreme Court did not address the merits of the Gerrymandering claim. It held instead that Virginia’s House lacked standing to represent State. The elements of standing are: a discrete and particularized injury that is fairly traceable to the challenged conduct and is likely to be redressed by a favorable decision.  In this case a Virginia law gave the Attorney General with exclusive authority to speak for the Commonwealth in civil litigation.

Justice Ruth Bader Ginsburg wrote for the majority an opinion that was joined by Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Neil Gorsuch. Justice Samuel Alito dissented in an opinion that was joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh. The decision means that the State’s election in November will likely go forward using the new map.

---

[1] Leland Ware, Louis L. Redding Professor of Law & Public Policy, University of Delaware